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f3jri. /f3 5./0 



*^ 




HARVARD 
COLLEGE 
LIBRARY 




■/:! 



I 



^t. 




MEMOIR 



or 



SIR JAMES DALRYMPLE 



FIKST VISCOUNT STAIE. 



Edinbm'gh : Printed by Thomas and Archibald Constable , 

FOR 

EDM0N8T0N AND DOUGLAS. 

LONDON , HAMILTON, ADAMS, AND CO. 

CAMBUIDOK . . . -. MACMILLAN AND CO. 

GLA800W JAMEB MACLBHOSK. 



Q 



MEMOIR 



OF 



^SIR JAMES DALRYMPLE^^ 

FIRST VISCOUNT STAIR 

PRESIDENT OF THE COURT OF SESSION IN S0OTLA.ND 

AND AUTHOB OF THE " IN8TITUTIOM8 OF THE LAW OF SCOTLAND " 



A STUDY JN THE HISTORY OF SCOTLAND AND SCOTCH 
LAW DURING THE SEVENTEENTH CENTURY 



i 



BY 



M, J. G. MACItAY 



AOVOCATe OF THE SCOTCH BAR. 



€ EDINBURGH 

EDMONSTON AND DOUGLAS 

187 3. 



\_All rights reserved J 



CONTENTS. 

PAGE 

Preface, ........ xiii 

Chronological Table, ...... xvii 



CHAPTER I. 

1619-1637. 

Ancestry of James Dalrymple, afterwards Lord Stair — William Dal- 
rymple, a cadet of the Dalrymples of Dalrymple, acquired the 
small estate of Stair in Ayrshire by marriage with Agnes Ken- 
nedy in reign of James ii. — Their son William married Marion 
Chahners of Gadsgirth, one of the Lollards of Kyle — The great- 
grandson of Marion Chalmers, great-grandfather of Lord Stair, 
James Dalrymple of Stair, belonged to the party of the Assored 
Lords, and was an adherent of the Reformed Faith — His son, 
James Dakymple, also a Protestant, joined the association of 
1567 in favour of James yi« — Neither the grand&ither nor father 
of Stair notable — His mother, Janet Kennedy, sprang from 
a family which had taken the side of the Befoimers — Stair 
bom in 1619 at Dmmmurchie — ^His father died when he was five 
yean old — Soon after which he was sent to Mauchline Grammar 
School by his mother — Groundless tradition of his father^s 
murder — Stair went to Glasgow University in 1633, and gradu- 
ated in Arts in 1637 — ^Description of Glasgow at this period, I 

CHAPTER IL 

i638-1647. 

Early manhood — Stair in Edinburgh — Sketch of political position at 
this period — Stair serves in the Earl of Glencairn*s regiment in 
the civil war — Elected a regent or professor in Glasgow Univer- 
sity — Subjects of instruction at this time in the University — His 
contemporaries as professors— Principal Strang, Bobert Baillie, 
David Dickson — Overture as to the college rents — ^Takes part in 
BaiUie's settlement as professor — Stair marries Margaret Boss of 
Balneil, and is re-elected regent — Sent to Edinburgh to claim 
exemption from excise for the University — ^Besigns office of 
regent— Influence of University training on Stair, . .10 

h 



vi CONTENTS. 

CHAPTER III. 

1648-1650. 



PAOB 



Stair passes as advocate — Sketches of some of his predecessors and 
contemporaries, Sir James Balfour, Sir Thomas Craig, Sir John 
Skene, Sir Thomas Hope — ^The leaders of the bar when Stair 
passed, Sir Thomas Nicolson, Sir John Gilmour, Sir John Nisbet — 
Difference in the position of the Scotch advocate and in the state 
of the Scotch law at that and at the present time — Stair goes to 
Holland as secretary to the Commission from Parliament to 
Charles n. — ^Position of Scotland after death of Charles i. — ^Pro- 
ceedings of the Commission — Its failure — Stair appointed a Com- 
missioner for the revision of the laws — ^The previous attempts 
with the same object — Second Commission to Charles IL at Breda 
— Stair again secretary — Its proceedings — Stair returns with the 
Closed Treaty — Stair meets Charles on his landing — ^Influence of 
Stair's visits to Holland — Intimacy between Scotland and Holland 
since the Reformation — ^Dutch jurisprudence^ .... 25 

CHAPTER IV. 

1650.1661. 

Stair advocate and judge during the Commonwealth — Sketch of influ- 
ence of Cromwell's government in ScoUand-^tair and other 
advocates refuse to take the Tender — The Tender laid aside — 
Stair one of Committee for restoration of the Outer House — 
Death of Sir James Learmonth, Lord Balcomie, one of the Com- 
missioners for the administration of justice— Stair appointed his 
successor by Monk — ^His appointment confirmed by Cromwell — 
His intercourse with the English judges gave him an opportunity 
of learning English law — Builds the house in General's Entry 
— His intimacy with Monk, who consults with him before he 
marches to England — Visits London on accession of Charles il — 
Appointed one of the Judges of Court of Session in new nomina- 
tion — His wife's estate of Carscreoch, in Galloway, his country 
residence, 56 

CHAPTER V. 

1661-1671. 

Stair Judge of Court of Session — Government 9f Scotland under Charles 
II. — The Royal Prerogative restored— First the Earl of Middleton, 



CONTENTS. vu 

PAOB 

and afterwards the Earl of Lauderdale, at the head of Scotch 
affain — Stair deprived of office for refuBing the Deolaratioii, but 
restored by Charles — Visit to Paris — Created a Baronet — ^Tragedy 
of his daughter, Janet Dalrymple, the Bride of Lammermoor — 
Different and inconsistent versions of the story — Other supersti- 
tious stories about members of Stair's family-— One of the Scotch 
Commissioners to treat of the Union — ^Failure of this project- 
On the resignation of Sir John Gilmour, appointed President of 
the Court of Session — Sir George Mackenzie's character of him — 
Made a member of the Privy Council of Scotland, ... 72 

CHAPTER VI. 

167M676. 

Stair President of the Court of Session for the first time — ^A Member 
of Commission for the Regulation of the Judicatories — Its interim 
Beport in 1670 — Secession of the Advocates on account of limita- 
tion of their fees — Act of Begulations 1672 — Stair Member of 
Parliament for shire of Wigton and one of Committee of the 
Articles — Legislation of this year — ^Act against Conventicles — 
Powers of Privy Council increased — Acts relating to Private 
Law — Inventories of Minors' Estates — Summonses — Registration 
of Deeds — Privilege of Royal Burghs — The Ann — Special Adjudi- 
cations—Debate before Lauderdale on proposal to abolish Summer 
Session of the Court — Again Member for Wigtonshire in Parlia- 
ment of 1673 — ^Incident of the Petition presented by the Women 
in the Parliament Close — Secession of the Advocates on the ques- 
tion of Appeal to Parliament from Court of Session — Conduct of 
the leading Advocates and of Stair on this occasion — The three 
leaders of the Bar at this period, Sir (George Lockhart, Sir John 
Lander, Sir George Mackenzie, 93 

CHAPTER VIL 

16761681. 

The City of Edinburgh undertakes to pay Stair's house-rent and that 
of his successors in office as President — Lauderdale in Scotland in 
1677— His policy— Trial of Mitchell— The Highland Host in the 
West^ and Bonds of Lawbnrrows imposed on iJl persons in trust 
—Stair opposes these measures in Council— Sir G. Mackenzie's 
defence of them^-Stair obtains alleviation of severe orders of 
Council against Covenanters — Important Acts of Sederunt of 
Court of Session as to Imprisonment for Debt and Protection of 
Debtors — ^Inventories of Registers — Agamst Solicitation of the 



viii CONTENTS. 



PAOK 



Judges — ^Diligence of Executor Creditor — ^Admission of Notaries 
—The Convention of 1678— Rebellion of 1679— Murder of Sharpe 
— Drumclog — Bothwell Bridge — ^The Sanquhar Declaration — 
Stair visits London to defend Court of Session — Charges against 
Lauderdale and the Court — Charles exonerates both — Duke of 
York comes to Scotland — Stair's speech to him at Holyrood — 
The Duke returns in 1680 as Commissioner to Parliament instead 
of Lauderdale — Cruel measures of the Privy Council — Stair 
defends himself from the charge of participating in them^-Mem- 
ber of Parliament for Wigtonshire in 1681 — Acts of this Parlia- 
ment as to the security of the Protestant religion — Succession to 
the throne — ^Against Conventicles — Test Act — ^Account of the 
debates on it — Legislation as to private law— Stair's Act as to 
execution of deeds — Blxclusion of terce by marriage-contract pro- 
visions — Registration in burghs — Judicial sales— Summary dili- 
gence on foreign bills — Evil consequences of Test Act — ^Trial of 
Argyll for taking it with qualification — Stair flies to London, but 
is refused an audience by Charles — Returns to Scotland — Deprived 
of office as Judge — Lives in retirement in Galloway, and propares 
his InstUtUiom for publication, 131 

CHAPTER VIIL 

1681. 

Publication of the InstUutions of the Law of ScoUatui at Edinburgh in 
1681 — Composition of the Work — Use made in it of the Decisions 
collected by Stair, and afterwards published — Aim of the Work 
— ^Di£ference in Arrangement of First Eidition and Second Edition 
of 169S— Modus LUigandi on Forms of Process— His position 
that Rights aro the object of Law, new and important — ^His defini- 
tion of Law as Reason versant about the Rights of Men — ^Rights 
divided by him into Personal Liberty, Dominion, and Obligations 
— Obligations divided into those by Engagements and Obediential 
Obligations —Criticism of this Division — How far he follows the 
Civil Law and the Feudal Law — Treatment of Commeroial Law 
— Analysis of the Contents of the InsHltUiona — Estimate of its 
Value — Comparison of it with the Institutional Works of Sir 
George Mackenzie, Lord Bankton, Mr. Erskine, and Mr. Bell, 151 

CHAPTER IX. 

1681-1686. 

Stair lives in rotirement at Carscreoch in Galloway and Stair in Ayr- 
shire — Commission granted to Claverhouse, as Sheriff of Wigton, 



I 



CONTENTS. ix 

PAGE 

to put down Conventicles, 1682 — Letters from Stair to Lord 
Queensberry — Puts off proposal to wait upon Dake of York — 
Sends Queensberry a copy of the Institutions — Parties and Con- 
venticles in Galloway — ClaTerhouse comes to Old Luce Parisb — 
CSonflict of Jurisdiction between him and Sir John Dalrymple, 
as Bailie of Regality — Sir John offers to buy off Regality from 
daverhouse — Stair writes to Queensberry complaining of Claver- 
house — Conceals himself, and flies to Holland to avoid prosecu- 
tion, October 1682 — Claverhouse and the Master of Stair make 
mutual complaints against each other before the Privy Council, 
which acquits Claverhouse and condemns the Master of Stair, 
who is deprived of his office as Bailie — Stair lives in Leyden— 
Description of that town and its University — Its Professors — 
Intercourse with Utrecht — Controversies of Aristotelians and 
Cartesians— Cocceians and Voetians — Other celebrated men in 
Holland — Spinoza— Bay le — ^Fagel — The Dutch Artists — General 
Activity and Industry of the Dutch — Scotch Exiles at this time 
in Holland described by Stewart of Coltness — Stair publishes 
first volume of his Decisions of the Court of Session — His dili- 
gence in noting Cases — His Decisions the first published — 
History of Scotch Law Reporting — Style of his Reports — Con- 
trast between them and present Reports, 177 



CHAPTER X. 

1686-1688. 

Stair publishes at Leyden the Physiologia Nova Experimental^ — 
Position of the second half of the seventeenth century in the 
history of Physical Science— The Phytiologxa dedicated to the 
Royal Society of London — Stair describes its aim and his new 
Corpuscular hypothesis in the Plreface — The Physiologia part of 
a more general treatise intended to embrace the whole of Philo- 
sophy, which was to consist of four Inquiries concerning Human 
Knowledge, Natural Theology, Morality and Physiology — 
Analysis of the PhyMologtOr—lta Definitions and Axioms — His 
corpuscular hypothesis contrasted with the theories of the 
Atomists and Descartes-^His theory of motion — His erroneous 
astronomical notions — Undulatory theory of light — His sketch of 
imperfect chemistry of the time — ^The Physiologia favourably 
reviewed by Bayle — The States-General refuse to expel Stair 
from Holland — Stair charged with treason for complicity in Rye 
House Plot and Aj*gyle*s expedition — ^Account of the proceedings 
against him by Sir George Mackenzie, the Lord Advocate- 
Evidence against him obtained by torture, and inconclusive pro- 



CONTENTS. 

PAGE 

oeedings against him adjourned — In 1687 Sir John Dalrymple, 
Master of Stair, becomes Lord Advocate, and obtains a remission 
for his father — Stair refuses to accept the pardon, and continues 
in Holland tiU the Bevolution of 1688, 194 



CHAPTER XL 

1688-1692. 

Stair accompanies William of Orange on his voyage to England — 
Lands with him at Torbay — ^Remains in London during the Con- 
vention of 1689, but takes active part in Scotch affairs — Pro- 
ceedings of the Ck>nvention — Stair's criticism on the vote declaring 
James had forfeited the Crown — Commissioners from Scotland 
sent to offer Scotch Crown to William — ^William takes Corona- 
tion Oath, and makes declaration in favour of toleration — Master 
of Stair Lord Advocate — Other Officers of State— Stair appointed 
President of Court after death of Lockhart— His letter to 
Melville as to management of Convention— Parliament meets — 
Origin of the Club party, or the Patriots — Their conduct — ^Battle 
of Killiecrankie^ Votes carried by Club in Session of 1689, but 
not sanctioned by the Commissioner — One of these votes directed 
against Stair — Anonymous pamphlet in support of the votes — 
Stair urges that this should be answered — Stair's Apology — 
Created Viscount— Nomination of the new Session — Stair's 
account of their first meeting — His speech to the advocates — 
Letters to Lord Melville as to conduct of the Club, and state of 
affairs in Scotland — Coolness between Melville and the Dal- 
rymples — Stair*s last letter to Melville, 30th January 1690 — 
Parliament of 1690 — Its proceedings — Concessions of William — 
Stair member of Committee for Settlement of the Church — 
Measures passed for that purpose — ^Visitation of the Universities 
— Stair a member of Commission — Master of Stair supersedes 
Melville — ^Proposal to embody militia — Stair's diplomatic con- 
duct in the Council — His prosperity, . . . . .212 



CHAPTER XIL 

1692-1696. 

Death of Lady Stair — ^Her reputed Witchcraft — Belief in Witchcraft 
in 17th Century — ^Why attributed to Lady Stair — Her Char- 
acter — Massacre of Glencoe— Stair's connexion with it — ^Attacks 
upon the Court of Session, and Stair as President — ^How far well 



CONTENTS. xi 



PAOK 



founded — MeasureB in Pariiament for Reform of Court of Session 
— Chaige against Stair of favouring his sons as advocates not well 
founded — The Peats — ^Aots of Sederunt of Court of Session during 
Stair's second Presidency — ^Publication, anonymously, of 7!^ 
VindiccUwn qfihe Divine Peiyec^tofM— Summary and Character of 
this Work— 25th November 1696, Death of Stair— His Personal 
Appearance — Macaulay*s false Character of him — Estimates of 
Contemporaries — ^His true Character — Comparison and Contrast 
between him and Lord Bacon — His Descendants ; the Master of 
Stair ; Sir James Dalrymple of Borthwick ; Sir Hew Dalrymple 
of North Berwick ; Dr. Thomas Dalrymple ; Sir David Dalrymple 
of Hailes; The Field-Marshal and Second Earl Stair; Lord 
Hailes — His character reflected in them — Greater than any of 
his descendants — Chief Founder of Law of Scotland, . . 247 

INDEX, 296 



PREFACE. 

The work which follows contains a Memoir or 
Memorials rather than a Biography of Lord Stair, for 
the materials necessary for the latter scarcely exist. 
Especially in those minute particulars required to 
form a living picture of a man removed by nearly two 
centuries from our own tunes, there is a blank in the 
information with regard to Stair. A fire at Castle 
Kennedy is said to have destroyed most of the early 
papers of the Dahymple family, and I have been in- 
formed by Dr. John Stuart, of H.M. General Register 
House, Edinburgh, who recently examined them for 
the Historical Commission, that there are none relating 
to its founder. It is possible, however, that letters of 
or referring to Stair may still be extant. Should any 
reader possess such he will do a favour by communi- 
cating them to me. I have thought it expedient to 
give at length most of the letters of Stair which have 
come imder my notice. These bring us in closer contact 
with the man than any remarks which can be made 
about him. 



xiv PREFACE. 

For an account of his public acts and an estimate 
of his character as a Statesman^ Judge, and Author, 
there is ample matter, which I have tried to condense 
rather than to exhaust. 

How fiu: it has been necessary to enter into general 
history is elsewhere explamed. 

While giving Stair his place as the central figure, 
the attempt has been made to trace the progress of 
Scotch law during the seventeenth century, its golden 
age — ^like other golden ages not without much dross, 
— ^and to commemorate some of the more eminent of 
his contemporaries, both legal and political 

An acknowledgment is due to the writers who 
have already treated the same subject—^Professor 
Forbes, in his Preface to the Journal of the Sessions^ 
Dr. Murray, in the Literary History of Galloway ^ and 
Dr. David Irving, in his Lives of Scottish Writers. 
They have indicated many, though not all, the sources 
from which this Memoir has been composed ; but the 
original authorities have in every case been consulted. 
The principal of these are the Mxmimenta of the Uni- 
versity of Glasgow; the Letters of Principal Baillie; the 
Histories of Clarendon, Burnet, Sir George Mackenzie, 
and Wodrow; the State Papers of Clarendon, Thurloe, 
Lauderdale, Lord Melville, and Carstaires ; the Deci- 
sions and Miscellaneous Writings of Sir John Lauder 



PREFACE. XV 

of Fountainhall ; the Acts of the Scotch Parliament ; 
the Sederunt Books of the Court of Session and Justi- 
ciary ; and the Minutes of the Privy Council I have 
made more copious quotations from these contem- 
porary sources than is usual, wishing to enable the 
reader to test the accuracy of conclusions which some- 
times differ from those of writers of great and deserved 
reputation. To two living authors, Mr. John Hill 
Burton, Advocate, the historian of Scotland, and Mr. 
David Laing, Librarian of the Library of the Writers 
to the Signet in Edinburgh, who have done much to 
elucidate the history of this period, I desire to offer 
gratefrd thanks. 

Li treating of Stair's Work, the Physiologia Nova 
Experimentalisy I have been reluctantly compelled to 
refer to matters on which my knowledge is entirely 
second-hand, but the authorities on whom I have 
relied are, I hope, sufficiently indicated. Jn regard to 
this part of the subject I owe much to the learning of 
Mr. W. H. Hudson, Fellow of St. John's College, and 
Mathematical Moderator in the University of Cam- 
bridge ; and of the Reverend W. R Smith, Professor 
of Hebrew in the Free Church College in Aberdeen. 
Another friend, Mr. Alexander Gibson, Advocate, was 
good enough to read the proofs, and made many 
valuable suggestions. 



xvi PREFACE. 

Written in the intervals of leisure alone available 
to the lawyer who does not abandon the practice of 
his profession for literature, this Memoir requires 
indulgence. Such intervals, however, are of consider- 
able length in the lives of most young lawyers — ^in 
this respect, I think, more fortunate than they are 
sometimes willing to imagine. 



CHRONOLOGICAL TABLE. 



1619. 

1629. 
16S3. 
1637. 
1638. 

1639. 
1640. 
1641. 
1642. 

1643. 

1644. 

1645. 

1646. 

1647. 
3648. 

1649. 
1650. 



May 1619— Birtli of Stair at Drammarchie 
in Ayrshire. 

At Mauchline Orammar School. 

At Glasgow University as Student. 

Lanreate in Arts. 

Comes to Edinbnigh. 



Serves in Olencaim's Regiment in the War 
of the Covenant. 



Elected, after examination. Regent at Glas- 
gow University. 

Visitation of the University — ^takes part 
in Overture as to College rents — and in 
call of Robert Baillie, as Professor. 

Marries Margaret Ross of Balneil.in Wig- 
tonshire — ^resigns and is re-appoint^ 
Regent. 

Visits Edinburgh to petition for relief of 
College from excise. 



Resigns office of Regent. 
February 17— Admitted Advocate. 

March 17— Goes to the Hague as Secretary 
to the Commission sent to Charles by 
Parliament of Scotland— One of the 
Commission for revising the laws. 

Goes to Breda as Secretary to the Com- 
mission sent to Charles by Parliament- 
arrives there 16th March — returns to 
Scotland with the Closed Treaty. 

May 20— Sent to meet the King at his 
landing in Scotland. 



Charles i. crowned at Holyrood. 

28th February — The Covenant 

signed in Greyfriars Church. 
Glasgow Assembly. 

Pacification of Dunse. 

8d November— Long Parliament 
meets. 

Charles i. visits Scotland. 

4th January— Arrest of the Five 

Members. 
28d October— Edgehill. 



3d July— Marston Moor. 

10th January—Laud beheaded. 
14th June— Naseby. 

6th May — Charles surrenders to 
Scots at Newark. 



4th October— Cromwell in Edin- 
burgh. 

80th January— Charles i. be- 
headed. 

6th February — Charles ii. pro- 
claimed King at Edinburgh. 

20th April— Montrose lands in 
Scotland, is taken prisoner, 
and beheaded 21st May. 

28d June— Charles n. lands at 
Bogue of Gight. 

3d September- Dunbar. 



XVUl 



CHRONOLOGICAL TABLE. 



1651. Practises as Advocate. 



1652. 



1658. 



1654. Refuses to take the Tender. 



1655. 

1657. Appointed Judge by Monk— his appoint- 
ment confirmed by Cromwell. 

1658. 

1659. Confers with Monk previous to his march 

to England. 

1660. Visits London with Lord Cassilis after 

Restoration. 



1661. Appointed Judge of Court of Session by 
Charles n. 



1662. 

1668. Refdses to sign Declaration. 



1664. Resigns his office of Judge— his plaoe 
declared vacant— visits London, satis- 
fies Charles^ and is restored— visits Paris 
— Created baronet. 

1665. 
1666. 
1667. 



1668. 

1669. MarriMe and death of his daughter Janet 

the Bride of Lammennoor. ' 

1670. One of the Commissioners for Scotland to 

treat of the Union. 

1671. January 7— Appointed President of Court 

of Session. 

1672. M.P. for Shire of Wigton— Act regulatinir 

the Judic^ries. 



Ist January— Charles n. crowned 

at Scone. 
Ist September — Monk takes 

Dundee. 
8d September— Worcester. 

18th May — Comnussioners ap- 
pointed in Scotland for Aa- 
ministration of Justice. 

16th December— Cromwell Lord 
Protector. 

Monk Commander-in-Chief in 

Scotland. 
19th July— Engagement at Loch 

Garry. 

Cromwell's Council for Scotland 
appointed. 

8th May— Cromwell refuses the 
tiUe of King. 

8d September— Death of Crom- 
well. 

18th November — ^Monk marches 
towards England. 

Ist January— Monk enters Eng- 
land. 

4th February — Marches into 

London. 
29th May— Charles n. makes 

his entry into London. 

1st January— Scotch Parliament 
meets. 

28th May— Earl of Argyle be- 
headed. 

Episcopacy restored. 

FaU of Earl of Middleton. 
Lauderdale Minister for Scot- 
land. 



24th April— The Plague breaks 
out in London. 

Dutch defeated by Monk and 
Prince Rupert. 

Peace of Breda. 

2d September— Fire of London. 

27th November— Pentiand Hill. 

Triple Alliance. 



Qovemment of the Cabal. 



CHRONOLOGICAL TABLE. 



XIX 



1673. Again M.P. for Sbire of Wigton. 

1674. Secession of the Advocates. 

1676. Town-Council of Edinboigh order his 

house-rent as President of Court of 
Session to be paid. 

1677. Supports a more clement policy towards 

Covenanters — opposes bringing High- 
land Host into West Country and the 
Bonds of Peaceu 

1678. Convention of Estates in which Stair re- 

presents Wigtonshire. 

1679. Visits London to defend -Court from 

charges made against it— Speech to Duke 
of York at Holyrood. 



168L M.P. for Wigtonshire and on Committee 
of Artides^-fitair's Act as to Execution 
of Deeds— Test Act— retires ftx>m office 
rather than take Test— publishes the 
InaUhUioru of the Lav qf Scotland. 

1682. Takes refuge in Holland. 

1688. First volume of Stair^s Dtcisums pub- 
lished. 

1684. 

1686. Outlawed for treason. 

1686. Publishes PhyHotogia Nova Bxperimm- 

talis, 

1687. James Dalrymple, Master of Stair, Lord 

Advocate— Stair's outlawry remitted. 
Second volume of Stair's Decisions pub- 
lished. 

1688. Betums with WUUam of Orange. 

1689. Again President of Court of Session. 



1690. 

1691. 
1692. 
1698. 

1694 
1695. 



Attack on himself and family by the Club 
—publishes his Apoloffy— Created Vis- 
count. 

Supports Embodiment of Militia. 
His wife dies. 

Second edition of the InstittUians qf the 
Law qf Scotland published. 



Vindication qf Divine Perfections pub- 
lished. 
November 25— Death of Stair. 



29th March— English Test Act. 



January — ^Execution of James 
Mitchell for attempt to mur- 
der Archbishop Sharpe. 

12th August— Popish Plot. 



Ist May— Murder of Archbishop 

Sharpe. 
27th May— Habeas Corpus Act 
1st June — Dmmcli 



Off. 
911] 



22d June— BothwelT Bridge. 

Duke of York in Scotland. 

Trial and conviction of Earl of 
Aigyle, who escapes flrom 
prison 19th December. 

19th October— Shaftesbury with- 
draws to Holland. 

14th June— Ryehouse Plot. 



6th Feby.— Death of Charles n. 
80th June^Argyle beheaded. 



Newton's Principia published. 



5th November— Prince of Orange 
lands at Torbay, 

14th Bfarch — Convention in 

Scotland. 
26th May— Killiecrankie. 
20th July— Episcopacy abolished 

inScotUuut 

1st July— Battle of the Boyne. 



February— Massacre of Olenooe. 



Inquiry as to Olenooe. 



n fant 6cUurer Thistoire par lee lois et lee lois par rhistoire. — MoN- 
TRSQX7IEF, L*E»prU dee Lata, 



Certe cognitio ista (t.e. jurisprudentiaB cognitio), ad viroa civiles proprie 
spectat ; qui optime nonint qnid ferat societaa hnmana, quid sains populi, 
quid gentium mores, quid remm publicamm fomuo diyersie ; ideoque possint 
de LegibuB ex principiis et prsBoeptis tarn sequitatis naturalis quam politices 
decemere. — ^Baoon, De DignitfUe et Augmentis ScierUiaruin^ Lib. viiL 



Scotch Judge, — ^Whaur did ye get that frae ? 

Scotch Advoeo/U, — From Stair, my Lord. 

Scotch Judge. — Na, na. There 'b nae nonsense in Stair. 



/ 



CHAPTEE I. 
1619-1637. 

Ancestry of James Dahymple, ftfterwards Lord Stair— William Dalrymple, a cadet 
of tiie Daliymples of DaJrymple, acquired the small estate of Stair in Ayrshire 
by marriage with Agnes Kennedy in reign of James n.— Their son William mar- 
ried Marion Chalmers of Gradagirth, one of the Lollards of Kyle— The great- 
grandson of Marion Chalmers, great-grandfather of Lord Stair, James Dalrymple 
of Stair, belonged to the party of the Assured Lords, and was an adherent of 
the Reformed Faith— His son, James Dalrymple, also a Protestant, joined the 
association of 1567 in favour of James vi.— Neither the grandfather nor father 
of Stair notable — His mother, Janet Kennedy, sprang from a family which had 
taken the side of the Beformers-^tair bom in 1619 at Drunmiurchie— His father 
died when he was five years old— Soon after which he was sent to Mauchline 
Grammar School by bis mother^Oroundless tradition of his father's murder 
—Stair went to Glasgow University in 1688, and gradoated in arts in 1687— 
Description of Glasgow at this period. 

Ths attempt has been made in the following memoir to 
delineate the life of the greatest lawyer Scotland and one of 
the greatest Britain has produced. Though specially attractive 
to members of his own profession, to whom it affords an ex- 
ample of well-directed talent and indomitable perseverance, 
otiiers besides lawyers may perhaps learn something from a 
life of Lord Stair. The age in which he lived was one of the 
most memorable in our national history, and he played, though 
not a leading, yet an important part in it. The life of an 
ordinaiy Scotchman or Englishman, who had lived through all 
and taken part in many of the great events of the seventeenth 
century, would probably afford some points of general interest. 
But he was no ordinary man who, after serving in the opening 
scene of the civil war, became one of the earliest professors of 
philosophy in Glasgow; who went as secretary to the Commit 



2 LORD STAIR. 

sioners from the Scotck Parliament to Charles n. at the Hague 
and Breda, who was the intimate of Monk and Lauderdale and 
the companion of William of Orange in his voyage to England, 
who twice raised himself to the Presidency of the Supreme 
Court in his native country, and wrote the earliest and the best 
complete treatise on its laws. 

The temptation indeed is great to enlarge the canvas and 
endeavour to show the manner in which Scotland passed 
through the vicissitudes of this revolutionary era, the last in 
which it held an independent place in political affairs, and to 
explain the influence it exercised on the settlement of the civil 
and ecclesiastical constitution of the United Kingdom. But 
the history of this period will here be touched on only so far 
as requisite to elucidate the life and character of Stair. For 
this purpose, however, it is necessary to enter more into general 
history than persons acquainted with Stair only &s a lawyer 
would anticipate. The troubles of the closing years of the 
reign of Charles i., the brief but pregnant interlude of the 
Commonwealth — a period scarcely enough noticed by Scotch 
historians, the Bestoration and reigns of the two last Stuart 
kings^ and the completion of the Bevolution settlement in Scot- 
land, were the scenes in which the drama of his life was acted. 

James Dalrymple^ afterwards Lord Stair, was bom in a 
station which makes it worth while to cast a glance backward 
beyond his parents at his ancestry. The family from which a 
Scotch gentleman of this time sprang was one of the conditions 
almost certain to afiTect his future life, and in the case of Stair 
its influence may readily be observed. His father, James 
Dalrymple, was laird of Stair, a small estate of 168 Scotch 
acres, situated in the district of Kyle,^ in Ayrshire, on the 

^ Kyle is the oentral didtrict of Ayrshire, between the Boon and the 
Irvine, and is subdivided by the Water of Ayr into King's Kyle on the 
south, and Kyle Stewart on the north. ** Near to this place," t.e. UchUtree, 
"to the westward, on the river Air, in King's Kyle, is situat Stair, the in- 
heritance of James Dalrymple^ Knight and Baronet, who being learned in the 



ANCESTRY OF STAIR 3 

floathem side of the Water of Ayr, about halfway between the 
town of Ayr and the village of Mauchline. This estate had 
come to the family thioagh the marriage, in the reign of 
James IL, of William Dalxymple, a cadet of the ancient house 
of Dalrymple of Dalrymple, which can be traced as far back as 
the reign of Alexander IIL, with Agnes Kennedy, heiress in 
right of her mother df the barony of Stair Montgomery. A 
dispensation by Bishop Kennedy of St. Andrews, as the Pope's 
delegate permitting the marriage, though within the forbidden 
degrees, is extant amongst the Stair papers.^ Their son, Wil- 
liam Dalrymple of Stair, the lineal ancestor of Lord Stair, in 
the seventh generation, married a daughter of Sir John Chal- 
mers of GadsgirtL This lady, Marion^ or Isobel Chalmers, 

laws, was sdmitted an ordinar jadge of Seaaion in the first nomination and 
settlement of the judicatory by Charles the Second " (his appointment as 
judge by GromweU is passed oyer in silence), ''after his Restoration anno 1661, 
and President anno 1671. And being removed from that office in the year 
1681, was by their Majesties restored to be President of the Session in the 
year 1689. And in anno 1690 was created Viscount of Stair." — Second 
Edition of Camden's Deter vpUon qf Scotland, Edinburgh, 1695, by Sir Jamea 
Dalrymple of Borthwkk, the second son of Stair. The extent of the estate 
of Stair is stated at 168 acres in the Statistical Account of Scotland, 

^ '' The surname of Dalrymple was first used by Adam de Dalrymple, 
who possessed the barony of Dalrymple in the reign of Alexander in. There 
is a charter in the rolls of King Robert m., the first year of his reign, anno 
1371, ratifying a grant which Malcolm filius Gilchrist filius Adae de Dal- 
rymple made of the half of the barony of Dalrymple to Sir John Kennedy, 
and the granter having then a son, John Dalrymple, who gets a charter about 
the same thne of the whole dominium de Dalrymple, it is no stretch, but a 
▼ery modest computation in chronology, to place Adam, the great-grandfather, 
as high as Alexander ni.'s time.'' — Cbawtobd's Peerage, p. 451, Note A. 
The same author observes, Note D, *' The Montgomeries of Stair were cer- 
tainly one of tiie ancientest and best extracted families in Airshire. I observe 
that Allan de Mundegumbri del Conto, de Ayr, their ancestor, is in the Rag- 
man Roll or the submission of the Scots Barons to Edward i. of England, 
anno 1296." '* Adam de Dalrjrmple," we are gravely informed by the author 
of the life of Stair's grandson, John Earl of Stair, *' was a gentleman of un- 
common parts and deep penetration." — Life of John Earl qf Stair, p. 6. 

^ It is uncertain whether her name was Marion, as Forbes states he saw 
her called in writings in the Earl of Stair's hand, — Preface to Forbes's Jovmal, 
p. 29, —or Isabella, as she is named by Knox and by Nisbet. 



4 LORD STAIR. 

was one of the Lollards of Kyle, as these precursors of the 
Reformation were named from the district in which they 
chiefly dwelt, against whom the Scotch Parliament directed an 
Act in 1424. She is mentioned by John Enox as one of the 
members of that sect who were summoned in 1494 before King 
James iv. and his Great Council, by " Bobert Blackadder called 
Archebishope of Glasgow."* The great-grandson of Marion or 
Isobel Chalmers, the great-grandfather of Lord Stair, James 
Dalrymple of Stair, was amongst the earliest and firmest pro- 
fessors of the Reformed Faith. He belonged to the party of 
the Assured Lords, who, under the protection of Henry vin., and 
the leadership of Matthew, Earl of Lennox, and WiUiam, Earl 
of Glencaim, a name we shall meet in the life of Stair, opposed 
the Regent Arran, who of vacillating disposition and alarmed 
at Henry's ambitious tactics had abjured the new doctrines. 
For his share in the gathering^ at the Muir of Glasgow in 
1544, Dalrymple incurred forfeiture for treason, but this for- 
feiture was remitted in 1555. 

His son inherited, with the name and estate, the principles 
of his father. His signature is attached, along with a number 
of barons and gentlemen of Kyle, Cunningham, and Carrick, 
to the memorable Bond for the maintenance of the preaching 
of the Gospel, and the defence of the whole body of Pro- 
testants within the realm, entered into at Ayr on 4th Sep- 
tember 1562. The second James Dalrymple joined the Duke 
of Chatelherault in opposing Queen Jtfary's marriage to Damley, 
and for the part he took in the Duke's attempt to seize 
Damley the family estate was again forfeited in 1565, but 
was restored in the following year. 

^ See the curious acoonnt of the LoUardfl of Kyle, their aiticleB, thirty- 
four in nomber, and their trial, in which Adam Reid de Barskymming, their 
leader, triumphs over Blackadder, in Knox's Htaiory qf the Rtfarmatkmt 
p. 17. 

^ As to this gathering, see Diumall of Occurrents in SeoUandy p. 32, and 
Tytler's History, iii. 24. 



ANCESTORS ON BOTH STDES, REFORMERS. 5 

After the murder of Darnley, he was one of those who 
engaged in the Association of 1567, by which the Con- 
federates^ bound themselves ''to inaugurate the Prince, and 
with all their strength and forces promote, concur, fortifie, and 
assist in the promoting and establishing him in his kingdom 
and government, as becomes faithful and true subjects to do 
to their Prince/" Neither the grandfather of Lord Stair, 
John Dalrymple of Stair, nor his father, James Dalrymple 
of Stair, rose out of family into national history ; the former 
succeeded to the estate of Stair in 1586, the latter in 1620.^ 

The mother of Lord Stair was Janet Kennedy, daughter of 
Fergus Kennedy of Bjiockdaw by Helen Cathcart of Oarleton. 
His maternal ancestors,^ like his paternal, were noted ad- 
herents of the Beformation. He was thus descended, on both 
sides, from those independent landed men to whose swords, as 
well as to the words of the preachers and the blood of the 
martyrs, Scotland owed her Beformation. 

In the month of May 1619, in part of the &nn buildings of 
Drummurchie, or Drummorchie,^ in the parish of Barr and dis- 
trict of Carrick, in Ayrshire, James Dabrymple, afterwards Lord 
Stair, was bom* That fann, now the property of his descendant. 
Sir James Fergusson, then belonged to his father, and his mother 
is said to have given birth to her child there on a journey home- 

^ Amongst the signatureB to the Bond besides that of Dalrymple we 
find Alexander^ Earl of Glencaim, *<the good Earl," son of that William, 
Earl of Glencaim, with whom Dalrymple's father fought at Glasgow Muir, 
and ancestor of William, Earl of Glencaim, under whom Stair served in 1639, 
as well as that of James Chalmers of Gadsgirth, the representative of the 
family of Marion Chalmers, the ancestress of Stair, 

' Crawford's PeeragCy p. 453. 

s See their titles to the estate, Mag. Sig., lib. xliiL No. 311, lib. xlix. 
No. 309. The former is a Charter, in 1603, to John Dalrymple in liferent, 
and his son James in fee ; the latter is a Charter of Confirmation, 1620, to 
James Dalrymple and his spouse Janet Kennedy in liferent, and to tlie 
heirs and assignees of James in fee. 

* Forbes's Preface, p. 29. 

' Statistical Account qf Scotland, Ayrshire, p. 409. 



6 LORD STAIR 

wards to Stair from a visit in the North. There is no trust- 
worthy record ^ of his having had either brothers or sisters, and 
at the age of five he lost his father. The tradition that his 
father was murdered, and that Stair forfeited his estate by kill- 
ing the murderer and was obliged to fly the country,* though 
narrated by his descendant Sir John Dalrymple of Cranston, 
has never received corroboration, and is destitute of internal 
probability. There is no evidence of either of the alleged 
murders, or that the estate, twice forfeited by his ancestors, 
was at this time forfeited by Stair. It does not appear that 
he ever quitted Scotland till sent to Holland in 1649, and 
from 1633 we have a nearly continuous record of his life. 
Such an act of vengeance would be quite inconsistent with a 
character which his admirers have described as mild, his 
detractors as cunning, but no one as passionate or resentfuL 
The story is an instance of the falsehoods which find their 
way into history — unfortunately not the last we shall encounter 
in the life of Stair. 

Like many other men of note, he owed much to his mother, 
who, Forbes* teUs us, was " a woman of excellent spirit," and 
" took care to have him well educated." 

^ The anonymous author of the Life of John Earl of Bioxr^ however, says 
that ^ Stair being only a younger brother, was trained up for a liberal em- 
ployment," but gives no authority ; and there is no evidence for this state- 
ment, apparently introduced to excuse Stair having held such a position as 
that of a Professor. — Life qf John Earl of SUmTj p. 6. 

' ** He lost his estate in his youth for killing the murderer of his father^ 
and was obliged to fly from his country." — Sir John Dalrymple's MtmoWa of 
Great Britain and Ireland, i. 217. 

' Preface to Forbes's Journal qf the Session, p. 30. William Forbes, advo- 
cate, the author of this Preface, better known by his treatise on Teinds, is 
the best authority for several of the facts in the life of Stair. His Preface 
was published in 1713 under the sanction of Hew Dalrymple, Stair's third 
son, and successor in the office of President of the Court, from whom, as 
weU as other members of the family, there is no reason to doubt he must 
have derived his information wifch respect to Stair ; indeed he says himself, 
" I had information and light about the Session and those heroes who have 
given paios to preserve and commemorate the decisions partly from the 



MAUCHLINE SCHOOL— 0LA800W UNIVERSITY. 7 

In 1629, or perhaps earlier, he was sent by her to the 
Grammar School of Mauchline^ whence he proceeded to the 
University of Glasgow in 1633, the year in which Charles |. 
was crowned at Edinburgh. The earliest mention of his name 
in the records of that university, which, under a succession of 
learned Principals, sustained the reputation it had acquired 
nnder Andrew Melville,^ is in March 1635^ when he was en- 
rolled amongst the students of the higher classes.^ He again 
appears as the first in the list of Laureates or Graduates in Arts 
on.26th July 1637.' The list is divided into classes, and he 
was undoubtedly in the first class, but whether the arrangement 
in the class itself, which is not alphabetical, expresses order of 
merit is not quite certain.^ 

The talents of Stair, however, had certainly been recognised 
during his coU^e course, for it was at the request of some of 
the Professors that he returned four years later to compete for 
a vacant place as Begent The Principal, during the whole 
period of his connexion with the imiversity both as student 
and afterwards as Begent, was Dr. John Strang,* one of the 

records and history, partiy from the honourable and worthy persons foUow- 
ing : ^tr H%tgh Dcdrymple of North Benoiek, Lord President of the Session, 
• . . Sir Dcund Dairymple of Hailes, late Queen^s Advocate (a grandson of 
Stair, the father of Lord HaHes), Sir James Dairymple qfBorthtnckj Baronet 
(second son of Stair)." 

^ Of Glasgow under Melville his nephew says, ** There was no place in 
Europe comparable to Glasgow for guid letters dnring these years, for a 
plentiful and guid chepe mercat of aU kynd of languages, artes, and sciences." 

s Munimenta Universitatis Gla^guensis, iiL 88. iv. Nonas Martii ascripti 
sunt ez superioribus dassibus (amongst others) Jacobus Dammplius. 

s Munimenta, iii. 22. Lanreati vii. Calendas Sextilis, anno 1637. 

* Dr. Laing says, however, with reference to Bobert Baillie, whose name 
appears in the same place in the list of graduates of 1620, he took " the 
degree of Master of Arts probably with some distinction, as his name stands 
first on the list of graduates." — Memoir of Baillie prefixed to his Letters, 
pi zziii 

^ Strang was admitted Principal 22d February 1626, two yean after the 
resignation of Principal John Cameron, a divine of pote in the French Pro- 
testant Church, who had been Professor at Sedan and Saumur before he 
came to Glasgow as Principal, where he only remained twelve months when 



8 LORD STAIB. 

coFrespondents and father-in-law of Robert Baillie whose busy 
pen has left so vivid a picture of Scotch affairs in Church and 
State, and preserved many of his contemporaries from oblivion. 
Baillie, although much in the society of Stair at a later period 
as fellow-professor in Glasgow, and his companion on his first 
visit to Holland, unfortunately tells us nothing concerning 
him, but his letters show the scenes and the men amongst 
whom his youth and manhood passed 

The men we shall afterwards come in contact with ; but it 
is worth notice how different Glasgow in the middle of the 
seventeenth century was from the teeming hive of industry 
which has now succeeded it. Its population was under 14,000. 
Its extent was limited ta the small portion of the modem town 
which forms the ancient royalty, and was surrounded by a 
stone wall with eight ports or gates. The venerable Cathedral, 
which dates from the end of the eleventh century, the College, 
founded in the middle of the fifteenth century, the Bishop's 
Palace and Tolbooth, the broad and clean streets, and noble 
river, moved the admiration of travellers, who compared it with 
Oxford. One of these describes it '' as the non-such of Scot- 
land, where an English florist may pick up a posie ;" another 

he retamed to France, became Profeeeor of Divinity at Montanban, and died 
in 1625 at the age of forty-aiz. His works were ooUected after his death by 
his pupils, Lonis Oappel and Frederic Spanheim, and published at Geneva. 
His doctrine, which leant to Arminianism, admitting the possibility of the 
salvation of aU men, was foUowed by a party in the French Protestant 
Church called after his name, but more commonly Amyraldists from his 
pupil Amyraut. — See L\f6 by Irving. At Glasgow his lectures, as we learn 
from Baillie, inculcated conformity and passive obedience {Memoir of Baillie 
by D. Laing, p. 26). His opinions on these points probably rendered his 
residence at Glasgow shorter than it otherwise might have been. The pre- 
decessor of Cameron as Principal, Bobert Boyd of Trochrig, held the office 
from 20th January 1615 to Slst January 1623. Baillie mentions his ability 
and the flourishing state of Glasgow in his time in the Epistola ad Lectorem 
prefixed to Boyd's Commentary on the Ephesiana published in 1652. An 
account of the writings of Boyd and Cameron will be found in Dr. Walker 
of Camwath's Lectures on Scotch Theology in the Sixteenth and Seventeenth 
Centuries, p. 5. 



GLASGOW IN THE SEVENTEENTH CENTURY. 9 

" as not 80 big nor so rich^ yet a mnch sweeter place than Edin- 
bnigh,"^ The source of its future prosperity was already 
visible. In 1610 it was called, not quite accurately, ** the most 
famous town for merchandise in Scotland;" for its customs 
were, even in the time of the Commonwealth, under £600, 
rather less than those of Aberdeen, and a fourth of those of 
Leith. Half a century later its merchants were quaintly 
said ** to be stuffed with merchandise as their ships swell 
big with foreign commodities, and returns from France and 
other remote parts, where they have agents and £Etctors to 
correspond."' In literature, notwithstanding the eminence 
of its university, then the first in Scotland, Glasgow did 
not occupy so high a place. The first printer came there 
in the year Stair left college as a graduate, and though he 
issued several of the works of David Dickson and Zachaiy 
Boyd, BaiUie and others of Staii^s colleagues as professors pub- 
lished in London, Edinburgh, Sotterdam, or Leyden. It was 
amidst such surroundings, in a town which was a quiet yet 
active centre of education and of trade for a small country, that 
Starr spent ten years of his early manhood actively engaged in 
the work of education. But before his return to Glasgow as 
a teacher he repaired to the capital, at that time the theatre of 
the religious and political movement which was to end in the 
Bevolution. 

^ Bay's MemairSf p. 159 ; pabliahed by the Sydenham Society. 

* It was not, however, till the Union that the great trade of Glasgow 
commenced. "Glasgow is a great dty of business,** writes Defoe in 1727» 
'* and has the face of foreign as weU as domestic trade, nay, I may say 'tis 
the only city in Scotland that apparently increases in both. The Union baa 
indeed served its end to them more than to any other part of the kingdom — 
their trade being formed by it ; for as the Union opened the door to the Scots 
into onr American colonies, the Glasgow merchants presently embraced the 
opportunity."— Defoe's Tour in Scotland. 



CHAPTER II. 
1638-1647. 

Eariy manhood— Stair in Edinburgh— Sketch of political position at this period- 
Stair serves in the Earl of Glencaim's regiment in the civil war — ^Elected a regent 
or professor in Glaegow University — Subjects of instruction at this time in the 
University — His contemporaries as professors, Principal Strang, Robert Baillie^ 
David Dickson — Overture as to the college rents — ^Takes part in Baillie's settle- 
ment as professor— Stair mairies Maigaret Boss of Balneil, and is rejected 
regent — Sent to Edinbnx^gh to claim exemption from excise for the University — 
Resigns office of regent — Influence of University training on Stair. 

After taking his degree Stair came in 1638 to Edinbnigli, 
and " there never was/' says Forbes/ " in Scotland a more im- 
portant scene than that he had first occasibn to open his eyes 
on." Nor is this expression exaggerated. The events which 
cost Charles i. his crown and life, and restored Presbyterian- 
ism as the form of government of the Scotch national church, 
had then reached their crisis.^ For nine years no parliament 
had been summoned in England, and those which sat in Scot- 
land had sat only to register the Acts of the lords of the articles, 
whose election, an innovation ' introduced by James VL, had 

^ Forbe8*8 Preface, p. 30. 

* The last Kngliah Parliament had been dissolyed by royal prodamation 
in Mareb 1629« 

' " Hitherto, in the election of the lords of the articles, the temporal had 
nominated eight of the spiritual, the spiritual eight of the temporal, and the 
commons equal proportions of their own order for the shires and boroughs. 
An important innovation was now introduced ; eight noblemen were chosen 
by the prelates, eight prelates were again appointed by those nobles ; the 
sixteen selected an equal number of burgesses and lesser barons from the 
third estate."— Laing's History of Scotland, I 81. 



POLITICAL POSITION OF SCOTLAND. 11 

placed in the hands of the bishops the nominees of the king. 
The trial and condemnation of Lord Balmerino in 1G35, under 
the old Acts^ against lecusing-making, for statements in a petition 
to the king, neither presented nor published, and surreptitiously 
obtained, had roused the indignation both of the nobility and 
the people, which his tardy pardon had not appeased. For the 
first time since the Beformation a churchman. Archbishop 
Spottiswoode, was appointed to the high office of Chancellor of 
Scotland in 1636. 

In June 1637 Prynne, Bastwick, and Burton' were pilloried 
in Old Palace Yard, Westminster^ for libels on Archbishop 
Laud. That prelate, for whose ambition the See of Canterbury 
was too narrow a sphere, had obtained in the previous year the 
royal sanction to Canons for the regulation of the Scotch 
church, under which presbyteries were indirectly abolished and 
the font and altar, with attendant ceremonies, made compulsory 
in every church. In July his attempt to force a liturgy or 
service-book upon Scotland was made. It was met by the 
opposition of the great bulk of the nation, of which the stool of 
Jenny Geddes,' flung at the head of the Dean of Edinburgh in St 
Giles's Church, was the rude symbol. In November of the same 
year the trial of the right to levy ship-money had commenced, 
and in April 1638 judgment was given against Hampden, who 
became, in the words of Clarendon, the most famous man in 
England. On the Ist of March, by which time Stair had pro- 

1 As to Balmerino's trial, Bee Burnet's Hiaiory qf hia Own Timet, I 22. 
Lftingy i. 106. 

* "William Prynne, Barrister, Dr. John Bastwick, and the Uev. Henry 
Burton, minister of Friday Street Church. Their sin was against Laud and 
his surplices at All-hallowtide, not against any other man or thing." — ^Carlyle*a 
Cromwell, i. 75. 

' " No sooner was the book opened by the Dean of Edinburgh, but a num- 
ber of the meaner sort, with dapping of their hands and outcries, made a 
great uproar, and one of them, called Jane or Janet Geddes (yet living at the 
writing of this relation), flung a little folding-stool, whereon she sat, at the 
Dean's head, saying, < Out thou false thief, does thou say the mass at my 
lug?'"— Quoted from Baket'a Chronicle, 5th Ed. 1670, by Carlyle, ibid, I 76. 



12 LORD STAIR 

bably come to Edinbuigh, the Covenant, prepared by the leaders 
of the tables, Alexander Henderson, the foremost of the Scotch 
clergy, and Archibald Johnston of Warnston, the unde of 
Bishop Burnet (afterwards Stair^s colleague on the bench), and 
revised by Lords Balmerino, Loudon, and Bothes, was signed in 
Greyfriars Church by great numbers of both sexes of every 
rank and of all age&^ It was speedily circulated throughout 
the coimtry, and in two months all Scotland, except Aberdeen ^ 
and the surrounding district, and the towns of St Andrews and 
CfaQ, had adhered to it Few movements in history can more 
truly claim the name of national Not satisfied with the am- 
biguous concessions of the King's Covenant,' a device of the 
royal commissioner, the diplomatic Marquess of Hamilton, the 
(general Assembly, which met at Glasgow^ on 21st November 
1638, refused to separate at his bidding, condenmed the errors 
of Papacy and Arminianism, the articles of Perth, the canons 
and liturgy of Laud, abjured prelacy, deposed the bishops, and 
established the Presbyterian polity. The step was short from 

VBaUlie's Letters, L 52, 62. Laing, i. 136. 

' Laing, i. 137. '* Of noblemen at home,'' writes BailUe to Spang on 5th 
April, *< who are not connselloni or papists, unto which it was not offered, I 
think they be within four or five who hes not subscryved. All the shyres 
have subscryved by their commissioners, and all the tonnes, except Aberdeen, 
St. Andrews, and Craill ; yea, the particular gentlemen, burgesses and minis- 
ters, have put to their hands ; and the parishes throughout the whole countiy 
where the ministers could be persuaded on a Sabbath day, all have publicly 
with ane uplifted hand, man and woman, sworn it." — L 62. 

> See Baillie, L 106, 112, 115, 119. By the King's Covenant the king 
bound himself to maintain *' religion as professed at present, by which 
Charles tacitly understood the Episcopal, but left it to his subjects to suppose 
the Presbyterian religion." " It was subscribed with three different explana- 
tions ; by the privy council in its original sense, that is, exclusive of prelacy ; 
by the professors of Aberdeen with a reservation of Episcopacy, and by 
Hamilton with an additional reservation of the real presence in the Eucha- 
rist"— Laing, i. 143. 

* Of this famous assembly, besides its own Acts during its twenty-four 
sessions or sittings, from 21st November to 20th December 1638, see Baillie's 
Letters, and specially his history of it sent to Spang, i. 118, 176, and 
drawn up at his leisure coming from DunsehilL 



STATR SERVES IN CIVIL WAR, 1639. 13 

the field of such religious conflicts to the field of arms, and on 
7th June 1639 the army of the Covenanters, under David 
Leslie, fresh &om the victories of Gustavus, confronted the 
royal troops, led by the king in person, at Dunselaw. 

In the war of the Covenant Stair commanded a troop in 
the regiment of WOliam, Earl of Glencaim, and he may have 
been one of those captains who, Baillie— himself present as 
preacher to the Ayrshire troops ^ — ^teUs us, were *^ for the most 
part barrens or gentlemen of good note,'* and who had flying 
at their tent doors ''a brave new colour stamped with the 
Scottish armes, and this ditton, fob Chbist^s Crown and 
Covenant, in golden letters." But it is not quite certam what 
part Glencaim's regiment took in the war, though it would 
appear to have been on the side of the Covenant^ The 
Earl himself, although present at the Glasgow Assembly, after- 
wards sided with the Marquess of Hamilton, and withdrew 
from the Covenanters. In June 1639, he came with Lords 
Aboyneand TuUibardine to Aberdeen in an English collier, 
'' having all this time unhappilie otherways than his forbears, 
to the losing of heart of idl his Mends, deserted his countria" ' 
From Aberdeen Glencaim returned home ; but it appears, on 
the whole, improbable that either he or his regiment was 
present at the Pacification of Berwick, where Charles yielded 
a reluctant consent to the demands of the Covenanters on the 
11th of June. Stair continued, however, to serve as a soldier 

^ Baillie's Letters, L 210, et teq. 

* '* He oonunanded a troop of dragoons in the Parliament's seryioe." Sir 
John Daliymple's Memaimy p. 216 : "From having been a military com- 
mander for asserting and vindicating the laws, rights, and liberties of the 
kingdom against the little pretended invasions of Charles i., he came to 
overthrow and trample on them aU in the quality of a civil officer under 
Charles ii." — Proceedings and Votes of the Parliament of Scotland Stated 
and Vindicated, 1689. 

> Baillie's Letters, I 106 ; Spalding's Hietory qfthe Troubles, i 145. In 
Gordon's History qf Scots Affairs, 1637-41, p. 109, Glencaim is mentioned in 
a list of Covenanters; but Gordon adds, "True it is that some of these 
aftervk'ards did forsake the Covenanters' partye." 



14 LORD STAIR 

till the banning of 1641^ but it is not known whether he 
took paxt in the short autumn campaign of 1640, in which the 
successes of the Scotch army at Newbum and Newcastle forced 
the King to agree to the treaty of Bipon — ^the conclusion of 
which was adjourned to London, where the English Com- 
missioners had to attend the Parliament at last summoned by 
Charles — ^too late for peace, but not for civil war. 

It is in March 1641, when the centre of national strife had 
shifted from Scotland to London, where the Long Parliament 
was occupied with the trial of Strafford,^ that Stair next appears. 
He was in that month elected a Segent in the University 
of Glasgow, having been solicited to come forward by some of 
the professors, his former acquaintances, probably Principal 
Strang, Robert Mayne afterwards first Professor of Medicine, 
and David Monro first Professor of Humanity, who were 
Begents when he took his d^ree. It is a well-authenticated 
tradition ^ that Stair appeared as candidate at the competitive 
examination for this office, dressed in buff and scarlet, his 
uniform as captain in Glcncaim's corps, from which it would 
appear he was still on active service. His determination to 
stand was sudden, for in a letter to his cousin, James Chalmers, 
laird of Gadsgirth, he writes : ^ " As for me, in that only am 
I discontent that I neither had your advice and approbation 
through the cderUy of ihe occasion to this alteration of my 
course, nor your opinion since." He retained his Company 
for some time, but he had now definitely chosen a civil in- 
stead of a military career, and was himself in the habit of 
saying that he then exchanged the camp ^ of Mars for that of 

* Strafford was impeached 11th Noyember 1640 ; his trial commenced on 
22d March, but was mperseded by the biU of attainder, which passed the 
Commons on 21st April, and the Lords on 8th May. He was executed on 
the a2th May. 

> Forbes's Preface, p. 30. 

' Printed in Nisbet's Heraldry, I App. 6 ; the date is 27th May 1641. 

^ Forbes's Preface, p. 30 : "A Martis ad musamm castra tradncttis fuit, 
to use his own phrase." 



REGENT AT GLASGOW UNIVERSITY, 1641. 16 

the Muses. The University Becords do not state what were 
the subjects of the examination in which he came out first ; 
probably the principal were Logic and GreeL^ The name of 
one of his competitors has been preserved in the doggerel satire 
on the Stair fEimlly, to which we shall often have occasion to 
refer : — 

^' Tho' non 6an all Stair^s turns and steps descrie, 
Let not his Proteous troph^ be past by, 
How Captane Staires in syllogistick field. 
Made Dominie Ronald to his vallour yield ; 
At that first triumph, Glasgow Colledge saw 
The juggler turn his sword to ferula."^ 

The date of his admission was 12th March 1641, and he pro- 
bably succeeded Mr. WiUiam Hamilton, who had resigned on 
the 26th of February. By the oath he took on that occasion 
he bound himself to attend diligently to the duties of his office 
and to the business of the College, not to resign before the 
expiry of six years without leave obtained and on three 
months' wanung. unless he should marry, in which case he was 
to resign at once, and not to complain if on a vacancy the 
interests of the Collie required that another Begent should be 
put above him. 

^ The aaonymons biographer of John, Earl of Stair, sayi, p. 6 : " SyUogistic 
reaaoning and explaining some portions of Greek authors." An account of 
an examination for a Professorship in 1619 is given in the Munimenta Uni- 
▼ersitatis Glasg., ilL 377. By an oath prescribed in Angnst 1628, the Regents 
were to swear before the election, *<Se ex nnmero candidatorom qui se 
examinandos sistent ant eonim qui gymnasiarchik proponentur eum qui 
sumxne idoneus maximoque Academiae usui futurus videatur electuros.'' 
Munimenta^ iL 302. For a competition at St. Andrews, see Lament's Diaryt 
p. 4. There is still a Professorship at Aberdeen to which the election is 
by examination. The practice of competition went out of use in Glasgow in 
the banning of the eighteenth century, but the successful candidate was 
subjected to a trial, which, however, was almost nominaL— See Munimenta, 
a 386 and 389. 

s Maidment's Scotch PtuquUa, p. 180. Bonald was schoolmaster at Lin- 
lithgow, and afterwards at Stirling. Mr. Biaidment's industrious gleanings 
in the byeways of Scotch history deserve the gratitude of all students. 
This coUeotion of Scotch pasquils is specially valuable for the period of 
Stair's life. 



16 LORD STAIR 

Although it is not stated in the Becords that he was elected 
as Professor of Philosophy, and his proper title appears to have 
been Eegent, there is no reason to doubt that philosophy and 
especially dialectics or logic^ were amongst the subjects he 
taught, and that he may be regarded as the precursor of Francis 
Hutcheson,' Adam Smith,^ and Thomas Beid,^ the fathers of 
Scottish philosophy. Indeed if the division of subjects con- 
tinued, as is probable, the same as was fixed by the new erec- 
tion'* of James vi., while junior Eegent, dialectics, morals, and 
politics, with the elements of geometry and arithmetic, would 
seem to have been his province. The notes^ of onte of his 
students, Bobert Law, son of Thomas Law, minister of Lich- 

^ Murray, Literary ffi$tory of OaUoway, p. 127, takes for granted that 
these were the subjects Stair had to teach. His intiinate acquaintance with 
geometry is shown by many passages in his treatise Physiologia Nova 
£z])erimentalis. 

* Hntcheson was bom in Ireland in 1694, became Professor in Glasgow 
1729, and died 1747. His lectures on Moral Philosophy, originally in 
Latin, but translated after his death, besides their elegance and philosophical 
merits which are considerable, are remarkable for the frequent use of phrase- 
ology and ideas borrowed from the civil law. 

' Adam Smith, a pupO of Hutcheson's (see Dngald Stewart's Life of Smith) 
succeeded to his Chair of Moral Philosophy in 1 752 (which a Mr. T. Craigie 
had held in the interval). 

* Beid was elected on the resignation of Adam Smith in 1763. 
^ See Nova Erectio, in Appendix to Lord Rector's Addresses. 

^ These notes (Adv. lib. 5. 2. 9) are in a somewhat cramped MS. On 
the first leaf is written : — " Inchoavimus Compendium Logicae sub viro non 
pamm erudite "M? Jacobo Darumplio, anno domini 1643, Octobris 29," and 
on the last leaf, ** Finem huno Appendici Compendii Logicae sub Magistro 
Jacobo Darymplio viro non parum erudite, anno domini 1643, imposuimus 
Bobert Law." In 1640 the Visitors had approved of an overture of the Pro- 
fessors, under which it was proposed ^ that the first yeare, besyde the Greek 
Tongue, there be an Compend of Logick taught" — Munimenta, iL 455. The 
books used in Logic will be found in the Ordo et Batio Studiorum in 1648; — 
Ibid, iL 316. I am indebted for these references to Pkofessor T. M. Lindsay 
of the Free Church College^ Glasgow. 

Law is entered as one of the Novitii in quarta dasse Postridie Idus 
Martii 1643. — Munimenta, ii. 10. There seems little reason to doubt that 
he Ib the author of the Memorials edited by Mr. Kirkpatrick Sharpe, a work 
which shows he had not benefited much by his education in logic. 



STUDIES AT GLASGOW IN 1642. 17 

innan, have been preserved, and show that between 29th 
October and 29th December 1643, he gave a course, no doubt 
repeated at least annually, of exegetical lectures upon logic. 
The system he taught was cramped with the technicalities which 
the Latin schoolmen had imposed on the Organon of Aristotle, 
but even formal logic is not without its uses to the future 
lawyer, whose business largely consists in accurate definition, 
complete division or distinction, the detection of fallacies, and 
sound syllogistic reasoning. If we may credit the testimony of 
Forbes,^ which is corroborated by the internal evidence of 
Stair^s published works, he did not confine himself to philosophy 
and logic, but studied hard the Greek and Latin languages, with 
the histoiy and antiquities of Greece and Bome, in order to 
the study of the civil law. Indeed a change, presently to be 
noticed, which was made while be was Begent, in the order of 
University instruction must have necessitated his studying and 
teaching all the branches of the College course. Another 
subject, not mentioned by Forbes, theology, cannot have escaped 
the attention of the new Eegent, whose youth was passed under 
the shadow of the Covenant, and in daily intercourse with such 
divines as Principal Strsmg, whose moderate opinions, unpopular 
with the zealots, probably coincided with his own, Robert 
BaiUie, who, amidst his professional labours and voluminous 
correspondence, had ever time for a polemic against Canter- 
bury or Arminianism, and David Dickson,' one of the com- 
pilers of the Directory for Public Worship, already known by 
his Explanation of the Epistle to the Hebrews, the most 
learned Presbyterian of his time in Biblical Exegesis. To 
this study Stair returned in his old age, but the controversies 
of the clergy led him to treat it in a devotional rather than 
polemical aspect, in Ins Vindication of the Divine Perfections. 

1 Preface, p. 30. 

* See life of BicksoD, by Wodrow, in Select Biographies, Wodrow 
Society, ii. 5. 

B 



18 LORD STAIR 

During the six years of Ids residence at Glasgow, Stair 
took frequent part in the management of the CoU^e business, 
an occupation which has sometimes discovered in studious 
men a capacity for affairs. 

On 17th September 1642 he joined the other Begents in an 
overture '' anent the ordering of the College Eents/' which was 
addressed to the Commissioners for the Visitation of the Uni- 
versity appointed by the General Assembly at St Andrews in 
this year. The occasion of the overture was an ordinance by 
the Commissioners that every Begent should educate his own 
scholars through all the four classes^ or years of the College 
course, instead of taking them, as had been the practice in 
Glasgow (differing in this from the other Scotch universities), 
for one year only, and so changing their pupils every year. 
Proceeding on a preamble reciting this ordinance, the over- 
ture stated that, 

** for the expeding and facilitating this present motione, we (t.e. the 
Begents) doe of our own accordes unanimously condescend and 
agrie that the stipends befoir possessed by everie Begent be zet 
retained, and that the augmentatione already designed to us be his 
Majesties gracious favour (for reducing our stipends to an ner 
equalitie) be thus disposed, viz., Fiftie merks for the first and 
second Begents a piece, ane hundred merkis for the third, two for 
the fourth, and ane hundred merkis for the Master of Humanitie.' 
So that for the further encouragement of those that now have or 

^ The four clasAes were Bajans in the first year ; Semi Bajans, the seoond ; 
Bachelors, the third ; and Magistrands, the fourth, — ^when the philosophical 
course ended and the students laureated or took the degree of M.A. — D. 
Laing's Note to BaiUie's Letters, ii. 39. In 1642 there were 60 Bajans, 
40 Semies, and 20 Laureates attending Baillie's classes. The origin of 
^^Bajan" is obscure. It has been supposed by some to be a corruption of 
heaujeimej by others of becjaune (yellow-beak or fledgling). It is connected 
with two words well known in Mediteval University slang (1.) Beanus, 
defined in an acrostic, Beanus Est Animal Nesciens Vitam Studosiornm, 
and (2.) Bejaunium (Bejaune) "quod a novis scholaribus nomine jucundi 
adventus a condiscipulis exigebatur,'^ see Ducange, Olosaarium, 

' The Regents were sometimes reckoned as five at the time by including 
the Master of Humanity. 



VISITATION OF GLASGOW UNIVERSITY. 19 

that heirafter Ball capesso this our charge that thereby they may 
be induced to stay the longer therein, that an proportion of the 
first and second Regents above the rest be in all tyme coming re- 
tained. And further, in respect what rent hes beine befoir pos^ 
sessed or is now by his Majestie designed is not such a competence 
of meanes as may encourage us to remain theirin, and not mak it 
an interim for a further vocatioune. We humbly intreat and repre- 
sent that if the rents and burthens of the Colledge can suifer 
so much yet further may be appointed as may be thought ex* 
pedient." 

This overture was allowed by the Commissioners, but the 
hopes of the Begents for larger salaries must have been dashed 
by the qualification that if it were found, after the trial of the 
rents, that the augmentation could not be got, there was to be 
a proportionate reduction.^ The stipends were afterwards 
raised, but not till 1649, after Stair had ceased to be Eegent, 
when they were fixed at 500 merks and 50 merks in addition 
to the eldest 

The Visitors' Acts on the occasion of this visitation afford 
some interesting glimpses of the Eegenf s duties and the course 
of study then pursued at Glasgow. The Dean of Faculty was 
enjoined to see to it " that the Regents be short in their nots," 
a rule which Law's notes show Stair faithfully obeyed, and to 
which we may perhaps attribute the conciseness that marks his 
Decisions and Institutions. " The former lessoune was to be 
examined before the next was taught," and '* the Greek text of 
Aristotle analysed viva voce, and thereafter the snmme of the 
text writtine;" every scholar was to have Aristotle's text in 
Greek. The practice of disputation, so characteristic of the 
mediaeval university, and the effects of which both for good and 
evil are traceable in every speech and writing of the Scotchmen 
of this age,' was preserved. It was ordained " that the dis- 

^ Mnnimenta, ii. 408. 

* And indeed of other ages. Franklin says of one who was a Scotchman, 
a university man, and a lawyer, thafc he had the right on three grounds to 
be disputations. — Franklin's Autobiography, 



20 LORD STAIR. 

putes among the schoUers continue as they now are in these 
classes and in the puhlic scholls, and that a way to stir up 
emulatione in studies betwixt classes be thought upon as the 
Facultie sail think convenient in theses, themes, disputes, 
declamations, and otherways." There was to be a public 
examination at the commencement of the Session on 1st of 
October, and before the vacation which began on 1st of June. 
Each scholar was to have a bible and to speak Latin under a 
penalty, to wear a gown, to practise lawful games, as golf, 
archeiy, and the like, but to abstain from cards and dice.^ 

The Segents at this time besides Stair were David Forsyth, 
David Dickson, David Munro, and William Sempla Munro 
had 4he Magistrand or senior, and Stair the Bajan or junior, 
class. Dickson was Professor of Divinity, Mtmro of Philosophy, 
and Forsyth. of Logic Semple is sometimes called Master of 
the Grammar.' Mr. Bobert Maine was Professor of Medicine. 
It was significant of the period that the Commissioners, while 
they resolved that the Professorship of Medicine was not 
necessary (though Maine was to hold it during his time^, 
a new Professorship of Divinity, of which there were already 
two teachers, the Principal, and David Dickson — ^was most 
necessary. To this new Chair Bobert BailUe, then minister of 
Kilwinning, in Ayrshire, was called ; and in the various steps 
of his disputed settlement Stair, as Begent, concurred. Baillie 
had been nominated by the General Assembly at St. Andrews 
in 1641, but the Earl of Eglinton, his patron, and his Pres- 
bytery and congregation interposed difficulties, and the Prin- 
cipal and Begents, including Stair, addressed him in an uigent 

I Manimenta, iL 465. 

' BaiUie'a Letters, ii 87. Baillie in this place mentions that three of the 
Regents, Munro, Forsyth, and Semple, sided with Principal Strang in the 
College dispute as to the election of a Dean of Faculty and Commissioners to 
the Assembly ** all of his own creation to be employed for anie thing he 
pleased ; " but Stair is not named. 

^ Munimenta^ ii. 467. 



STAIR MARRIES MARGARET ROSS. 21 

letter on 28th June 1642, exhorting him to obey the decision 
of the Assembly. In his answer he states his unwillingness 
to come, and says : '^ With the Presbyterie I have some hopes 
to come speed ; with my Lord I^linton and my people I have 
as yet none at all ; their earnestness to stick by me to the 
uttermost still contrnues." ^ He came> however, in the follow- 
ing month, a coolness between him and the Eglinton family 
— whose eldest son, Lord Montgomery, he had rebuked for 
excess in drinking, and for leaning to the Marquess of Hamilton 
— ^having apparently made him more willing to quit Kilwinning. 
His discourse on admission, De Hcsreticorum AtUoccUcuyrisi, 
was delivered on 16th July 1642. 

In September 1643, we learn from the University records 
that Stair, now in his twenty-fourth year, was about to marry ; 
and it being necessaiy, by the terms of his appointment, that he 
should resign his office, he did so, but was on the same day re- 
elected Begent by his colleagues, taking a new and shorter oath, 
from which the obligation of celibacy and to remain six years 
Begent were omitted It may have made the consent of his 
colleagues easier to obtain, that, in the following year, two of 
them, Munro and Dickson, followed his example.* The wife of 
Stair was Margaret Boss, elder daughter and co-heiress of 
James Boss of Balneil, in the parish of Old Luce, in Wigton- 
shire, the lady round whose memory the superstition and jealousy 
of her contemporaries and the romantic fiction ' of Scott have 
cast a gloom which makes it difficult to discern her true 
character. She brought him an estate of £500 a year, which, 
with his own patrimony, must have rendered him independent 
of the small salary of Begent^ 

^ Baillie's Letters, il. 37. 

^ Glasgow wa8, on this point, two centories in advance of the BngHsh 
Uniyeraities, which have only recently aUowed some of their fello¥nEi to marry. 

* Bride of Lammermoor, in which Lady Stair is represented by Lady 
Ashton. 

^ Her sister married, eight years after, Robert Farquhar of Gilmilnscrof t. 



22 LORD STAIR. 

On the 2l3t September of the same year he was present at 
the meeting of the Comitia of the University when the Mar- 
quess of Hamilton was elected Chancellor — the first layman 
who had held that office. In 1644 Stair was sent to Edin- 
burgh to represent the college in a claim to be exempted from 
excise, which was submitted to the Estates of Parliament. 
To his zeal in the discharge of this mission, the following letter 
of Lord Loudon to Principal Strang testifies :^ — 

"Reverend and loving Friend, — The Committee of 
Estaites having taken to their consideratione your desyres 
anent the immunitie of your CoUedge fra the excise, repre- 
sentit to thame be the beirar, Mr. James Dalrymple, and pressed 
hardlie hy Mm accordiTig to your privUedge, have condescendit 
that quhat is spent within the CoUedge for thair interteinment 
saU pay no more ; but leist it suld be ane preparative to utheris 
to sute the lyk immunitie, the Committee wald not condescend 
to give out any contract or writ heirupon. In the quhilk, or 
in any uther thing that may concern your good and priviledge 
of your Colledge, I saU endevor to approve myself 

" Your loving and faithful friend, Loudoun. 

*' Edinbubqh, 1 March 1644." 

The last notice of Stair's name as Eegent, which occurs in 
the printed records of the University,* is on 27th February 
1645, when he was present at a meeting of the Faculty of 
Arts ; but he held office till the close of 1647, and though the 
date' of his resignation is not given, it was probably in October 

in Ayrshire. James Dalrymple was one of the witnesses to her marriage- 
contract, dated 22d September 1651. — Robertson's Ayrshire FamiUes, iil 55. 
Murray erroneously says this lady married Sir David Dunbar of Mochrnm. — 
Literary History qf OaUaway^ p. 128. 

^ Munimenta, i. 29. > Munimenta, ii. 310. 

' Murray, in his Literary History qf OaUotoay, p. 127, says : '* In the 
month of April he intimaterl to the patrons his intention of retiring ; " for 
which he cites a MS. communication from the Records of Glasgow University, 



ACTIVITY OF GLASGOW UNIVERSITY. 23 

of tiiat year, when a new Begent,^ Mr. John Eilpatriok> was 
admitted 

The period of Stair^s Segency was one of universal activity 
in the University. The new generation of Scotch reformers, 
who were then its rulers, preserved the tradition of their 
predecessors in their honourable zeal for the higher education 
both in the grammar schools and the universities. The system 
of instruction and staff of teachers introduced in Glasgow by 
the new Erection in 1577 was expanded to suit the advancing 
knowledge of the new century. The greater part of the build- 
ings of the old College, now exchanged for a still nobler edifice, 
but which were not unworthy of a modest home of learning, 
were then in progress, and the valuable library was founded 
about the same time by the munificence of Zachaiy Boyd,' 
minister of the Barony, the intimate of Baillie, whose active 
correspondence' with Spang, Scotch minister at Botterdam, is 
full of orders of books for the College from the Dutch press, 
which the talents of its authors and the care of its printers 
then made the most famous in Europe. The residence of 
Stair at the University had an important bearing on his future 
life. His reputation was spread by the students, English and 
Irish as weU as Scotch, who at that time frequented it One 
of these, whose name deserves a grateful notice, Mr. John Snell ' 
of Uffeton, in Warwickshire, in sending, in 1670, a donation 

bat I bave not fonnd this in tbe printed Records. I owe to tbe kindness of 
Prc^essor W. P. Dickson of tbat University tbe following later notice of Stair 
wbich occnrs in the Minntes of the Faculty of Arts for 8tb April 1647 :— 
"Jacobns Dalrymplins Academie moderatores monuit nt de suocessore 
sibi mature prospioeretnr, nam sibi statatum non nltra kalendas sextilis sno 
in Academia mnnere yacara" 

1 Monimenta, uL 387. Kilpatrick was admitted Regent on 28th October 
1647.— MS. Minutes of Faculty of Arts. 

^ In 1671 Boyd was chosen Dean of Faculty, and from that time till his 
death was almost uninterruptedly an office-bearer in tbe University. — See 
Account of Bursaries founded by him — ^Deeds instituting Bursaries at Uni- 
versity of Glasgow, p. 34. 

' Snell was one of tbe Novitii in quarta classe in 1644. 



24 LORD STAIR 

to the College, of Bishop Walton's great Bible in the Oriental 
languages, writes to Principal Baillie : — 

" Sir, — My education in that place under the tutorage of 
the truly honourable and eminent Sir James DalrympU^ oblidges 
me, in gratitude, to wish you prosperitie, that as your religion 
and great learning, so also your loyaltie, may make you famous 
to succeeding generations." ^ 

Snell styles this Bible the first-fruits of his affection, having 
probably already contemplated the foundation of the exhibi- 
tions to Balliol College, Oxford, which he instituted seven years 
later. 

It was Stair^s diligence in representing the University 
which directed the attention of some of the leading men of the 
capital to his talents, and his own to the profession of an ad- 
vocate. In another respect it was an advantage that his Uni- 
versity career was prolonged beyond the ordinary term. When 
he came to write on law he wrote, not as a mere lawyer, but 
as one who had reasoned and taught in other subjects, especially 
philosophy, — the best antidote to the narrowness of a profession 
somewhat apt to absorb its votaries in the study of the meaner 
side of human nature and the pettier details of lifa His mind, 
as we see it exhibited in his Institutions, never forgot the 
search for principles which had formed its early training. It is 
this which constitutes the distinction of that work, making it 
worthy to be read by the philosophical jurist as well as the 
Scotch lawyer, and may preserve its fame when Scotch law 
has become matter only of historical interest 

1 Deeds institutiiig Bursaries, p. 92. SneU was bom in Scotland, at 
Ck>lmoneU in Ayrshire, bat after bis education at Glasgow became Clerk to 
Sir Orlando Bridgman, who appointed him Crier to the Coort of Common 
Pleas, and afterwards Seal Bearer, when Bridgman became Lord Keeper of 
the Great Seal in 1667. lUd. 296. 



CHAPTER III. 

1648-1650. 

Stair passes as advocate— Sketches of some of his predecessors and contemporaries, 
Sir James Balfour, Sir Thomas Craig, Sir John Skene, Sir Thomas Hope— The 
leaders of the bar when Stair passed. Sir Thomas Nicolson, Sir John Gilmour, 
Sir John Nisbet— Difference in the position of the Scotch advocate and In the 
state of the Scotch law at that and at the present time— Stair goes to Holland 
as secretary to the Commission from Parliament to Charles u.— Position of 
Scotland after death of Charles L— Proceedings of the Commission— Its failure 
— Stair appointed a Commissioner for the revision of the laws— The previous 
attempts with the same object— Second Commission to Charles u. at Breda- 
Stair again secretary— Its proceedings— Stair returns with the Closed Treaty— 
Stair meets Charles on his landing— Influence of Stair^s visits to Holland— 
Intimacy, between Scotland and Holland since the Befonnation— Dutch juris- 
prudence. 

On 17th February 1648 Stair was admitted advocate, hav- 
ing no doubt passed the examination in the Soman civil law 
which, down to the middle of the following centuiy, formed the 
oidinaiy and only honourable mode of entrance to the Scotch 
bar.^ 

Neither the bench nor the bar was specially distinguished 
when he joined the ranks of the latter. The eminent lawyers 

^ The civil law thens required from Intrants to the bar had been intro- 
dnoed before 1619.— See A. S., 12th February 1619, in Hay Campbell's 
Early Acta of Sederunt, p. 75, where it is printed from Fitmedden's M8&, 
and see further Faculty Minutes, Adv. Lib., 7th November 1664. As to the 
extraordinary mode of admission without examination, see A. Sb, 6th July 
1680 and 18th January 1684. An examination in Scotch law was first 
made imperative in 1750. In 1713 Forbes says^ " Advocates are sometimes 
admitted by a trial in the Scots law, in which case the candidate has no 
speech to the Lords before his admission, but admisnon upon a trial in the 
civil law is more honourable." 



26 LORD STAIR 

of the sixteenth century^ had passed away ; those of the seven- 
teenth whom Sir George Mackenzie, himself eight years Stair's 
jimior as an advocate, has celebrated, were only rising into 
fame. A few of these predecessors and elder contemporaries 
of Stair deserve a passing notice in this place to enable ns 
bekter to understand the character of the legal corporation at 
this time, which always exercises a subtle influence on all its 
members, and to appreciate the relative importance of Stair's 
work as a lawyer. 

Sir James Balfour of Pittendreich, who died in 1683, has 
left behind him an evil reputation which his credit as a lawyer 
cannot redeem. His character for legal capacity rests on a 
solid basi& He was one of the Commissioners appointed in 
1566 for the emendation of the laws and their publication in a 
correct and concise form; and, though this work was never 
accomplished, Balfour's labours resulted in the formation of the 
Collection of Practicks which bears his name, but was not 
printed till long after his death,^ and in its present shape has 
received touches from some later hand. This is the earliest 
law book still quoted in the Courts, and before the publication 
of Lord Stair^s Institutions was that most frequently referred 
to.' He had the art of acquiring office, and was successively 
Canon of Flisk, a Lord of Session, one of the first four Com- 
missary Judges, Lord Clerk Eegister, Prior of Pittenweem, and 
President of the Court of Session. Knox hajs branded him as 
blasphemous without any clear ground ; but of his partidpa- 

^ The chief lawyers of the Bixteenth Qentiuy had been the Presidents, 
Henry Sinclair Bishop of Roes, and Reid Bishop of Orkney, the Maitlands of 
Lethington, father and son, John Sinclair Dean of Bestalrig, brother of the 
President, the collector of the earliest Practicks, Sir James Balfour, Sir 
Thomas Craig, and Sir John Skene. Of the three last, as coming nearer to 
the time of Stair and his precursors as writers on law, a notice is given in 
the text. 

* The Practicks were first published in 1754 by the Ruddimans with a 
preface which is anonymous, but was written by Thomas Goodall. 

» GoodaU's Preface to Balfour's Practicks, p, 7. 



PREDECESSORS AT THE BAR: BALFOUR. 27 

tion in the murder oif Damley there seems no reasonable doubt, 
nor of his betrayal of his accomplice^ the Begent Morton, which 
led to the execution of the B^ent His character is thus 
drawn by Mr. Tytler in dark but not untrue colours in his 
instructive life of Craig : '' He had served with all parties, had 
deserted all, yet had profited by alL He had been the partisan 
of every leader who rose into distinction amid the troubled 
elements of these times. Almost every one of these eminent 
statesmen or soldiers he had seen perish by a violent death, — 
Murray assassinated, Lethington fall by his own hand, Grange 
by that of the common executioner, X<ennox on the field, Mor- 
ton on the scaffold. Many of these atoned by their death for 
a life of acknowledged guilt ; but theirs was upon the whole 
consistent guilt. Balfour, on the other hand, acquired amid 
the circumstances in which he was bred an acuteuess in anti- 
cipating the changes of party and the probable event of political 
conspiracy which enabled him rarely to adventure too far, 
which taught him to avoid alike the determined boldness that 
brings ruin in the case of failure, and that lukewarm inactivity 
which ought not to share in the rewards of success." ^ 

Of higher reputation than Balfour as a lawyer, and a con- 
trast in the purity of his public life, Sir Thomas Craig, the 
author of the Jus Feudale, written in 1603, but not published 
till 1654,^ forty-seven years after his death, was the only 

1 Tytler's Life of Craig, pp. 106, 106. 

' AccordiDg to Lord Stair, Craig wrote in 1600, bnt as he was called to 
the Bar in February 1563 (Tytler, p. 29), and says himself, in his Dedication, 
"qnadragxnta annis foro nostro me tradidissem,'' Mr. Tytler's date, 1603 
(Tytler, p. 158), appears the correct one. Stair's view of his work is sub- 
stantially that of all later authorities. '' Our learned countryman, Craig of 
Rickertoun hath largely and learnedly handled the feudal rights and customs 
of this and other nations in his book De Feudia ; and therefore we shall only 
follow closely what since his time hath been cleared or altered in our feudal 
rights, which is very much ; for he having written in the year 1600, there 
are since many statutes and variety of cases which did occur and were de- 
termined by the Lords, and have been de recenti observed as they were done 



28 LORD STAIR 

systematic writer on law in Scotland who preceded Stair. The 
Practicks of Sinclair, Lethington, Balfour, Wemyss, Colville, 
Haddington, and Sir Tlioraas Hope, are compilations merely. 
Craig^s was an original work, and though he disclaims the 
dangerous merit of novelty, the scope and method of his treatise 
were his own, and have largely influenced subsequent Scotch 
law books. This is especially the case in the early chapters 
where he deals with the origin of law in general, and traces 
the historical progress of the civil, canon, and feudal laws, and 
the introduction of the last into Scotland. The censure cast 
upon his work, that it mixes other feudal laws with Scotch, 
makes it necessary for the Scotch lawyer to be guarded in its 
use as an authority, but gives it a place in general as dis- 
tinguished from municipal jurisprudence, and has procured it 
alone of Scotch law treatises the honour of being edited by a 
Continental jurist^ Now that feudalism, long since banished 
from the social system, will soon cease to have any place in 

by the meet eminent of the Lords and h/wjers, as by Haddington, who was 
Pt«sident of the Session, and by President Spottiswood and by Bury, who 
continued in the Session from the year 1621 until his death in the year 
1642, and though their decisions have been intermitted since that time till 
Charles n.'s return, the loss is not great, the times being troublesome, and 
great alterations of the Lords ; but the decisions of the Lords have been con- 
stantly observed since the King's return, by which most of the feudal ques- 
tions are determined ; and those things which Craig could but conjecture from 
the nature of the feudal rights, the customs of neighbouring nations, and the 
opinions of the feudists, are now commonly known, and come to a fixed 
custom, neither doth he observe any decisions particularly further than his 
own time in which our feudal customs could be but little determined, 
seeing the Lords of Session were unstable and ambulatoiy tiU the year 1540, 
in which King James v. did perfect the establishment of the Session in a 
CoUege of Justice, who at first could not be so fixed and knowing in 
their forms and customs, and therefore it cannot be thought strange if the 
feudal customs as they are now settled do much di£fer from what Craig did 
observe. He hath indeed very well observed the origin and nature of feudal 
rights, and the customs of Italy where they began, and of France and Eng- 
land whence they were derived to us, and therefore we shall say little as to 
them."~Stair, ii. 3. 3. 
1 Mencken published an edition of Craig's Jus FeudaU at Leipzig in 1716. 



CEAIO AND SKENE. 29 

the law^ the same circumstance affords it a better chance of 
escaping oblivion. Craig is one of the lawyers whose example 
deserves to be kept in remembrance as a proof that there is no 
incompatibility between the cultivation of literature and pro- 
fessional excellence. A good scholar, he used Latin both in 
prose and verse with facility and elegance, though his poems 
are not likely to be now read except by the curious.^ He was 
never Judge of the Supreme Court, having probably declined 
the office, but he served with credit as Justice-Depute,' and 
Advocate for the Church, and in civil causes was one of the 
foremost advocates. Besides his best-known work, he wrote 
on the Succession to the English Throne against the Jesuit 
Parsons who supported the Spanish claim in preference to 
that of James vl ; a treatise of much foresight, on the Union 
of the Kingdoms, and refuted in his book De Homagio with 
acnteness the assertion, made in the Chronicles of Hollings- 
head, that Scotland had been an English fief, — a controversy 
which has been revived in our own day, but has now lost the 
practical interest which then attached to it.^ 

A contemporary of Craig, and predecessor of Stair, Sir John 
Skene, Lord Clerk Begister, who died in 1611, was the father 
of the long race of Scotch legal antiquaries, to whom his 
successors have been somewhat ungratefuL It is true he 
lacked accuracy, the cardinal virtue in historical research, and 
the correction of his errors has given much trouble to those 
who followed in his footsteps ; but it was an important step to 
have first edited those curious treatises, the Regiam Majestatem 
and Quoniam AttaMamenta, almost the earliest records of 
Scottish Law, even though his critical sagacity failed to per- 

^ Craig's principal poems were the PcuraineHcon, addrcMed to James vl on 
his departure from Scotland, and the Propemptkon, addressed to the eldest 
son of James Prince Henry. 

«Tytler, p. 349. 

> See Freeman's ^t«tori<xi;£'«8ay^ p. 114; the Beign of Edward the Third ; 
and Robertson's Scotland under her Early Kings, ii. p. 384. 



30 LORD STAIR 

ceive their English origin.^ His work, De Verbontm Stgniflca-' 
tiane, though not always trustworthy, has not yet been super- 
seded by any better glossary of ancient law terms. 

Sir Thomas Hope of Craighall, Lord Advocate of Charles i., 
and the father of three judges,^ though he did not himself reach 
the bench, was the most eminent advocate of his time. He died 
two years before Stair passed for the Bar. His fame does not 
rest on the Major^ and Minor Practicks, the former never 
published, and the latter inferior to similar collections, though 
containing some useful historical information, so much as on 
his astuteness as a lawyer and l^islator. He was probably 
the introducer^ of the irritant and resolutive clauses which 
were sustained against creditors, as making a valid entail at 
common law in the case of Viscoimt Stormonth, and formed 
the model for the Entail Act of 1685, drawn by Sir George 
Mackenzie. Another measure which has left as deep traces in 
Scotch law down to the present time as the law of entail was 
certainly his handiwork. He was the adviser of Charles i. 

^ Craig detected that the Regiam Majestatem was a copy of Glanville's 
tractate De legibtts et consuetudinUnts AnglicB, It is much to be regretted that 
he did not fulfil his intention of writing on the subject. ' ' Plura de his quatuor 
libris et de eis qui subeequuntnr speciali opuscule post nostras has de feudis 
Incnbrationes ezpouam," 1. 8. 1 1, and it was reserved for Mr. John Davidson 
and Lord Hailes to prove the point. The difference between the two works 
which their collation in the first volnme of the Scotch Acts makes evident, 
has not yet been snfiiciently elucidated. Mr. Kobert Campbell has, how- 
ever, done something towards this in a series of articles contributed to the 
Joumcd of Jurutprudence. 

* Lords Kerr, Craighall, and Hopetoun. 

^ There is a MS. of this work in the Glasgow College Library, F. 4. 4. 

* " But to prevent and remeid them there is a new Form found out which 
has these two branches, viz., either to make the party contractor of the debt 
to incur the loss and tinsel of his right, in favour of the next in the tailzie, 
or to declare all deeds done in prejudice of the tailzie by bond, contract, in- 
feftment, or comprisin, to be null of the law." — Hope, Minor Practicks, p. 144. 
This decision is now reckoned bad law. " Entails are founded on Statute 
only. It was the unanimous opinion of the Court in the case of Agnew of 
Sheuchan, that the case of Stormonth was wrong decided, and that entails 
had not a foot to stand upon but the Statute 1685.**— Lord Meadowbank in 



HOPE, LORD ADVOCATE OF CHARLES I. 31 

in the famous ^ revocation of all erections of Church lands, 
ieinds^ and patronages, made in 1625, which led to the sub- 
missions of the Lords of Erection, clergy, buighs, and tacksmen 
of teinds in 1628, and the decree arbitral of 2d September 
1629, ratified by the Acts^ of 1633, by which the system of 
valuation and sale of tithes, the comer-stone of the existing 
teind law, was completed. Hope, like many of the lawyers 
of the time, was a keen partisan of the Covenant,' and to his 
skill and that of Johnston of Warriston is due the legal 
form with which that party clothed many of its Acts, perhaps 
sdso the legal phraseology in which it expressed some of its 
doctrines. 

The leaders of the Bar, when Stair passed in 1648, were Sir 
Thomas Nicolson, Sir John Gilmour, and Sir John Nisbet. 
Nicolson, the rival of Hope, "the only man," according to 
Burnet,^ '' fit to be set up against the King^s advocate," obtained 

MaedawcU ▼. ffamUUm, 2d March 1815, F. G. Stair mentions that Stor- 
month*B case did pass with considerable difficulty, the Coart being nearly 
equally divided. Fonntainhall, Historical Notices, 1677, p. 141. — *^ As to the 
original of tailzies in Scotland, with clauses irritant in case of contracting 
debts, or not taking the name, etc., they are very late, the first of them 
within these sixty or seventy years; what was first in Scotland was the 
Laird of Calderwood^s tailsie of his lands, advised by Sir Thomas Hope.'* 

^ Hope drew the Summons of Beduction-Improbation of 1626, as to which 
see Mr. Burton's remarks, Hiatory of Scotland, vi 361. Of the series of 
measures which regulate the commutation of tithes in Scotland, it has been 
said, with considerable exaggeration, that it ''has conferred^ and is confer- 
ring, upon this kingdom such incalculable benefits as perhaps compensate 
the temporary evils inflicted upon Scotland by the errors of that unfortunate 
monarch." 

* See 1633, c 14 to 19. 

s « Many lawyers were of the Covenanters' side, and chiefly the King*s 
Advocate, Sir Thomas Hope, which was one of the greatest troubles the 
Marquis (Hamiltou) met with : for he being a stranger to Scottish law, in 
which the other was skilled as much as any was, was often at a great loss, 
for he durst advise with him in nothing, and often the King's Advocate 
aUeged law at the Council Board against what he was pressing."— Burnet's 
HUtory of the House of ffamiUon, p. 53. 

* Burnet's History qfthe House qf HamUton, p. 53. 



32 LORD STAIR, 

the epithet of Fulmen Fori^ but his vehement style of plead- 
ing was relieved by a play of wit ; his timid disposition in 
public aficmrs conjSned his distinction to professional success, 
and though his name occurs in almost all the cases reported 
by Gibson of Durie, the first Lord Advocate under Charles ii., 
he never held office. 

Gilmour,^ who passed in 1628, was remarked amongst the 
lawyers of his time for his preference of Scotch to Civil law. 
That this should be remarkable, was a sign that the municipal 
law was still in its infancy. He gained credit by his defence of 
Montrose, when prosecuted by Sir Thomas Hope in 1641, and 

^ Mackenzie's Charactentf p. 7* " Gilmoriomm senior, sine ullo juris 
Civilis auxilio, dodassimus raro miracnlo dici poterat ingenioque sao 
(iraxin Fori Scoticani jnri etiam Komano sequabat. Illom jura potins 
ponere qnam do jure respondere diximus eique appropinquabant Ciientes 
tanqnam Jndici potius qnam Advocate. Quasi alter etiam Hercules nodosa 
et nulla arte perpolita dava adversaries prostravit ; sine Rhetorica eloquens, 
sine literis doctua Opposnit ei Provideutia Nisbetum, qui summa doctrina 
oonsummataque eloquentia causas agebat nt justitin scale in eequilibrio essent ; 
summa tamen arte semper utens artem suam snspectam reddebat. Qnoties 
ergo conflixerunt penes Gilmorium gloria penes Nisbetum palma f uit, quoniam 
in hoc plus artis et onltus in iUo plus natune et virium. Nioolsonius 
junior eloquio usus est Fanatioo non Romano ; et hine ooncionabatur 
potius quam orabat : documentum posteris f uturus illud ad persuadendum 
aptius quod seculo licet sordido et judioibus licet hebetioribus placet. Si 
autem doctus hie orationes posteris transmisisset, Augusti seculum (iUi 
notissimum) imitatus fuisset.** There is a curious criticism on this passage in 
Boswell*s Tour to the Hebrides : ** Sir George Mackenzie's Works (the folio 
edition) happened to be in a window in the dining-room (of the Castle of 
Dunvegan) ; I asked Ihr. Johnson to look at the CharaeUrea Advocatorum, He 
allowed him powers of mind, and that he understood very weU what he tells: 
but said that there was too much declamation, and that the Latin was not 
correct. He found fault with appropmquabarU in the character of Gilmour. 
I tried him with the opposition between gloria and palma in the comparison 
between Gilmour and Nisbet, which Hailes in his catalogue of the Lords of 
Session thinks difficult to be understood. The words are pene» iUtan gloria 
penes hunc pcdma. In a short account of the Kirk of Scotland, which I pub- 
lished some years ago, I applied these words to the two contending parties, 
and explained them thus, *The popular party has most eloquence^ Dr. 
Robertson^s party most influence.' I was very desirous to hear Dr. John- 
son's explication. Johnson — I see no difficulty : Gilmour was admired for 
his parts ; Nisbet carried his cause by his skill in law.'* — P. 255, ed. 1785. 



NIC0L80N—GILM0 UR-^NISBET. 33 

by his opposition to the doctrine of constructive treason, when 
sought to be appKed to the case of the Earl of Argyle twenty 
years later. He was Staii^s predecessor in the President's Chair, 
which he occupied from the Bestoration till his resignation in 
1670.^ 

Nisbet, his chief competitor as an advocate, passed five 
years after Gilmour, and first distinguished himself as one of the 
coimsel of Lord Balmerino. He became one of the Commissaries 
of Edinburgh during the Commonwealth, and after the Bestora- 
tion combined for the last time the offices of Lord Advocate 
and Lord of Session, being appointed to both in 1664. He was 
noted for his knowledge of Greek,' and in his Davits, which 
Sir John Stewart, Lord Advocate under Queen Anne, answered, 
has left a record of his acuteness and of a type of mind which 
repeats itself in every generation of lawyers. His fame was 
tarnished, as that of some other advocates has been, by avarice,' 
for which the difficulty of attaining and retaining success and 
often even a livelihood at the Bar affords some palliation, but no 
sufficient excuse. The honour of this calling, exposed to pecu- 
liar temptations, requires that the love of justice and not of 
gain should be its ruling aim. 

The judges at this period were inferior to the advocates. 
After the resignation of Lord President Haddington, in 1626, 
scarcely a name of note occurs in the long catalogue of 
Lords of Session until Stair's own, unless exceptions are to 
be made in favour of Sir Bobert Spottiswoode, son of the 



^ His Portrait, by Soongal, is in Smith's Iconographis Scotica. 

s Bnnief 8 Hutory of Hi8 Otm Twiest p. 279. He is said to have offered 
;61000 for a Greek ms., lost when his house was burnt. 

^ Nisbet was dismissed from the office of Lord Advocate, for what Wod- 
row may well call a "yery sordid reason," ''having consulted pro et cod in 
the case betwixt the Lord Chancellor and Lord Leyen, concerning the entail 
of the estate of Leven.'* — ^Wodrow, iL 350. It gives a painfol idea of the 
state of the Bar, when snch an offence could be committed by one who held 
that high positioD, 

C 



34 LORD STAIR 

Archbishop and author of the *' Practicks," ^ whose attachment 
to the royal cause brought him to the scaffold in 1646, and 
of Sir Archibald Johnston of Warriston, more famous as a 
politician and party le^er than as a lawyer, who met the 
same fate for opposite principles, but not with equal forti- 
tttde, in 1663. 

From these brief notices of the chief lawyers of this 
period it may be seen how different was the position of a 
Scotch advocate in the seventeenth from that which he occu-^ 
pies in the nineteenth century. Besides the ordinary practice 
of the law, if his talents were considerable he was almost of 
necessity engaged in political contests. But if he played a 
nobler game, it was with higher stakes. His liberty, and 
even his life, were often risked ; his integrity was subject to 
severer trials. The works of such of these lawyers as wrote 
also indicate the comparatively unformed state of the law at 
this tima In the common law and practice of the court 
there were only manuscript collections of decisions to guide 
the lawyer. The statutes had not been long collected and 
printed. The feudal branch of the law was most matured, 
owing to the treatise of Craig ; but the consistency and arrange* 
ment of even this part of Scotch jurisprudence Stair dates 
from the Eestoration. 

It has been said that St^ soon obtained extensive practice 
as a lawyer ; but although the reputation he brought with him 
from Glasgow was doubtless of some service to him« it was 
rather by procuring for him honourable public employment than 
early private business. Indeed, the statement which imme- 
diately follows the Becord of his admission as advocate in 
the Books of Sederunt precludes the possibility of his having 
practised much. " The session was interrupted from the last 
of February 1648 to the first of June 1649 by the troubles of 

^ Spottiswoode's Praeticka were not published, however, till 1706, by his 
grandson, John Spottiswoode of that Ilk, advocate. 



STAIR'S PRACTICE NOT CONSIDERABLE. 35 

the country."* Before the latter date Stair had gone to Hol- 
land as Secretary to the Commission of Parliament sent to treat 
with Charles n. at the Hagaa He was employed in a similar 
capacity in the following year when he went to Breda. His 
refusal of the tender imposed hy Cromwell in 1654, by which 
those who took it were bound to be faithful to the Common- 
wealth of Ei^land, without King or House of Lords,' excluded 
him from practice at the Bar until the taking of that oath 
was dispensed with. The interval between this and his ap- 
pointment as judge in 1657 was too short to admit of his 
having conducted many causes, tmless the progress of business 
and the rise of advocates was much more rapid than in modem 
timea 

In order to follow the career of Stair it is now necessary to 
pass to a wider theatre, and to recur to the course of public 
affairs, of which from this time forward he ceased to be a mere 
spectator. 

On the 30th January 1649, Charles i. had been beheaded at 
Whitehall Whatever shortcomings * there may have been in 

^ MS. Books of Sedemnt, BegiBter House, Edinburgh. 

* Stair's Apology, p. 4. 

' Mr. Oarlyle's estimate of these appears just : ** The faults or misfortunes 
of the Scotch people in their Puritan business are many ; but, properly, their 
grand fault is this, that they have produced for it no sufficiently heroic man 
among them : no man that has an eye to see beyond the letter and the 
rubric ; to discern, across many consecrated rubrics of the past, the inar- 
ticulate dimness of the present and the future, and dare all perils in the 
path of that. With OUyer CromweU bom a Scotchman, with a Hero king 
and a unanimous Hero nation at his back, it might have been far otherwise. 
With OUyer bom Scotch, one sees not but the whole world might have be- 
come Puritan — might have struggled yet a long while to fashion itself 
according to that divine Hebrew gospel, to the exclusion of other gospels 
not Hebrew, which are also divine, and wiU have their share of fulfilment 
here ! But of such issue there is no danger. Instead of inspired Oliver, 
with direct insight and noble daring, we have Argyles, Loudons, and narrow, 
more or less opaque persons of the pedant species, — Committees of Estates, 
Committees of Kirks — much tied up in formulas both of them — a bigoted 
Theocracy without the inspiration, which is a very hopeless phenomenon in- 
deed 1*'— Oromioefl, ii 153. 



36 LORD STAIR. 

the leaders of Scotch politics at this time, they were not wantr 
ing in prompt decision. The nation, though prepared to aasert 
popular rights and to limit the royal prerogative, especially 
in matters relating to religion and Church government, was 
strongly in favour of monarchy in preference to the republic 
felt to be impending in England. On the 5th of Februaty 
Charles ii. was proclaimed king at the Cross of Edinbui^gh, but 
under the reservation, '^That before he be lEtdmitted to the 
exercise of his Boyall Power, he shall give satisfaction to the 
kingdom in those things that concern the security of Religion, 
the union betwixt the kingdoms, and the good and peace of 
the kingdom accoiding to the Nationall Covenant and the 
Solemn League and Covenant, for which end we are resolved, 
with all possible expedition, to make ane humble and earnest 
address to his Majesty/^ On 7th February BaiUie wrote to his 
correspondent. Spang, the Scotch minister (it Botterdam : — 
''Ane act of our lamentable Tragedy being endecl> we are 
entering again upon the scene. Oh, if it might be the Lord's 
pleasure, to perform more happy and comfortable actions than 
have appeared these years bygona To the great joy of all, in 
the midst of a verj' great and universal sorrow, we proclaimed, 
on Monday last, the Prince King of Britain, France, and Ire* 
land. We have sent the bearer, a worthy gentleman, to signifie 
80 much to his Majestic at the Hague. We purpose speedily 
to send a honorable Commission of all Estates.'' ^ The bearer 
of this letter was Sir Joseph Douglas, who arrived at Botter- 
dam on the 2d of March. On the 6th of that month the 
Commission was appointed by Parliament, the Commissioners 
being the Earls of Cassilis and Lothian ; the laird of Brodie ; 
and Winram, laird of libberton, the two last afterwards Judges 
of the Supreme Court ; Sir John Christie ; Alexander Jaffray, 
Burgess and Provost of Aberdeen ; and William Glendin- 

1 BaiUie'B LtUen, iii. 66. . 



SECRETARY TO COMMISSION TO THE HAGUE. 37 

ning ; ^ but the Commissioners who actually went appear to 
have been Cassilis, Brodie, Winram, and Jafifray.' To this 
Commission Stair was appointed Secretary.* 

On Saturday the 17th of March, the Commissioners, who 
were accompanied by a Commission from the General As- 
sembly, consisting of Bobert Blair, Bobert Baillie, and James 
Wood, as ministers, to whom Cassilis and Winram were joined 
as ruling elders,^ saQed from Kirkcaldy in John Gillespie's 
ship,^ and arrived at Rotterdam on the night of the Thursday 
following, whence they proceeded next day to Delft, where 
they remained till Monday, being informed by some of their 
friends that the King would be occupied with his Easter devo- 
tions till the succeeding Tuesday. On the afternoon of that 
day they had their first audience with Charles, when Cassilis 
spoke in name of the Parliament, and Baillie of the Eirk.^ 
The account of their proceedings may be read at length in the 
Seports to Parliament and the Assembly, in the Clarendon 
StcUe Papers, the Letters of Baillie, and the Diaries of Jaffray ^ 
and Brodie ; but as they have not been described with fulness 
by any historian,' and present a curious picture of a scene in 

^ Baillie's Letters, liL 507- Copy of the Commiasions. Seo abo Act. 
ParL tL 400, 435. 

* Jafiray's IHary, p. 54. 

' In the Acconnts of the Treaaurer of Excise there is a payment, on 15th 
March 1649, to Cassilis, of £90 sterling to himself, and £30 to the Secretary ; 
and on the return of the Commission Stair received a farther payment of 
£478, 68. Sd. Soots, for the expenses of the Commission generaUy. 

* Chirendon, StcUe Papers^ iii., App. 85. 

^ Balfour's Annala, iii. 392. ^ 

^ Baillie, iii 86. See Baillie's Speech spoken at the Hague in the King's 
Bedchamber, Tuesday, 27th March 1649, three o'clock in the afternoon, pp. 
84,85. 

7 Jaffray afterwards became a Quaker, and bis Diary is more occupied 
with his religious e^cperiences than political events. 

^ Mr. Burton, their most recent narrator, does not accurately distinguish 
the two Commissions — ^that to the Hague in 1649, and that sent to Breda 
in 1650 (Burton's History of Scotland, vii. 261 et seq.) ; but there was so 
much of rejietition in the proceedings of the two Commissions, that this is not 



38 LORD STAIR 

which Stair was intimately engaged, we shall give a short abs- 
tract of them, as well as of those of the following year. 

The chief difficulties in the way of the negotiations were 
the presence of Montrose at court ; the belief, on the part of 
the king^s councillors, that Ireland wonld be a more favourable 
stage than Scotland for the recovery of England, and their 
opposition to the king's acceptance of the Covenant The 
tone of the Commissioners was the reverse of conciliatory. 
" Saving that they bowed their bodies," says Clarendon, *' and 
made low reverences, they appeared more like ambassadors 
from a free State to an equal ally, than like subjects sent 
to their own Sovereign." 

The Commissioners from Parliament commenced by de- 
siring the removal of James Graham, '* who, abandoning the 
Covenant and despising the Oath of God, did invade his native 
country, and, with most inhumane and barbarous cnielty, did 
burn and waste divers parts thereof, and who spilt so much 
blood of your Majesty's* good subjects ; " for which crimes he 
had been forfeited by Parliament and excommunicated by the 
Kirk.^ The king's reply was, that he desired to have all 
the propositions of the Commissioners submitted to him at 
once.^ A similar demand had been made by the Commis- 
sioners of the Bark,* and both Commissions, by a second 
paper, repeated their former request, to which the King* re- 
joined, that he insisted on his answer already given, and was 
resolved not to consider any particular proposition until the 
whole were laid before him. Upon this the Commissioners of 
Parliament stated their demands, which were. First, That the 

wonderfaL The general movement of Scotch history at this period, and the 
interlacing of political and ecdesiaatical inflnenoea is described with great 
fidelity and grasp by Mr. Barton. 

27th March 1649. Act. ParL yL 453 ; COarendon, State Papers, ii 474. 

^ 8th April 1649, K.s. Act. ParL vi. 453 ; Clarendon, State Papers, iL 474. 

3 30th March 1649. Act Pari, vi 453 ; Qarendon, State Papers, iL 474. 

« 10th April 1649, K.s. Act ParL vL 453 ; BaiUie, iiL 512, 513. 



PROCEEDINGS OF THE C0MMI88I0K 39 

King would, by solemn oath, allow the National Covenant of 
Scotland and the Solemn League and Covenant of Scotland, 
England, and Ireland ; Second, That he would ratify all Acts 
of Parliament enjoining the Solemn League and Covenant, and 
establishing Presbyterial government in Scotland, and give his 
assent to Acts of Parliament enjoining the same in the rest of his 
dominions ; and Third, That he would consent that all matters 
civil be determined by the present and subsequent Parlia- 
ments, and all matters ecclesiastical by the ensuing General 
Assemblies.^ . The Commissioners of the EJrk presented the 
same requests in a paper in which the ecclesiastical side 
of the matter was treated in more detaU, requiring an assur- 
ance under the King's hand and seal, not merely of his 
acceptance of the two Covenants, but also of the Directory * 
of Worship, Confession of Faith, Catechism, and the Proposi- 
tions of Presbyterial Government — of all which, as Baillie in- 
forms us, they had given the King a copy, " bound together 
in as handsome a book as we could gett them : '* ^ they also 
demanded that the King should lay aside the use of the Service 
Book, and conform to the Directory.* 

The King ^ again pressed for an answer whether they had 
now disclosed all their demands, and whether they had any 
propositions to make for the recovery of his right in England, 
and bringing the murderers of his father to justice. The Com- 
missioners * of Parliament replied that these points were already 
answered by their former papers, as they were ready to make 
appear by a conference ; but Charles, whose conduct through- 
out indicates the adroitness of the diplomatists in his council, 

^ April 2Q~ Clarendon, State Papers, iL 476 ; Act. Pari. vi. 454. 

s BailUe, iil 514. > BaiUie, iii. 87. ^ BaiUie, ill 514. 

12. 

* April 22~ Ajct. ParL vL 454. 

14. 

• April oT Act. Pari, vi 464. 



40 LORD STAIR 

required^ particular answers, or tliat it should be made to 
appear in writing that the former papers contained sufficient 
answers. The Commissioners thus urged, answered ^ that 
they had no more demands to make imless commanded by 
Parliament, that they had no power to recede from any par- 
ticidar proposed, but that the people of Scotland were pre- 
pared, if the King granted their just and necessary desires, 
to do ''all that can be desired or expected from loyal sub- 
jects to their gracious King," and to contribute to his restora- 
tion to the government of his other kingdoms. The King 
stated that he was not satisfied by this answer, because it did 
not say they were to propose nothing more, but only that they 
were not to do it unless commanded, and because it contained 
no answer on the point of bringing the murderers of his 
father to justice.' The Commissioners replied that they had 
nothing further to add as to their propositions, and that they 
had not thought it necessary to multiply words in repeating 
" their deep sense of that horrid fact against the life of his royal 
father."^ More than a fortnight elapsed without any response 
from the King, and both sets of Commissioners then pressed 
him for an immediate answer.^ At last, on 29th May, the 
Elng declared himself in an identical answer ^ addressed to both 
commissions. He promised to maintain the ecclesiastical and 
civil government of Scotland as settled by law and all Acts of 
Parliament consented to by his father, when present or repre- 
sented by authorised commissioners, and particularly the laws 
concerning the National Covenant, the Confession of Faith, 



1 April 30 jg^g ^^ p^j ^ ^g » ^^^ 1649. Act Pari vL 466. 

May 10 May 3 

The dates are so given in the Acts of Parliament^ toL vL, but those of 
the two last papers appear transposed. 

» 7th May, N.a. Act ParL vi 455. * ^^^^ Act Pari vi 466. 

May 9. 

* May iZ: Act. ParL vi 466. • May H' Baillie, iii. 616, 616. 



PROCEEDINGS OF THE COMMISSION. 41 

and Presb3rterian govemment. Bat he qualified these con- 
cessions by observing that as regarded the League and Covenant 
in England and Ireland, it was not in his power to take any 
resolution without the consent of their respective Parliaments, 
and that he was willing to refer the consideration of this and 
all other English matters to a free Parliament. He further 
engaged to grant an indemnity to all, except persons guilty of 
the murder oi his father. 

The Commissioners of Parliament in their last paper ^ of 1st 
June expressed their dissatisfaction with this declaration of 
the King. They observed that it fell short of the concessions 
of his Mher at the Isle of Wight^ who had promised to con- 
firm the League and Covenant in both kingdoms, and to settle 
Presbytery and the Directory of Public Worship in England ; 
that the qualification of lus assent to the Acts of Parliaments 
in which the King or his commissioners had been present 
would render invalid the Acts of the last eight years, and was 
contrary to the precedents of 1561 and 1640, in the former of 
which years. Queen Mary, and in the latter Charles L, had 
confirmed Acts of Parliaments in which they had not been 
represented In a separate paper of the same date, they 
insisted on their first desire for the removal of Montrose, a 
desire not likely to be complied with, for the King's declaration 
had, as we learn from an indorsation ^ on Clarendon's copy in 
his own handwriting, been agreed to after counsel with Lord 
Montrosa The Commissioners of the Church presented' on 
the following day, a longer and more vehement protest against 
the King^s declaration, especially that part of it in which he re- 
fused to recognise the Covenant in England. Charles returned a 



* Mfty 21 1649. Act. ParL vi. 468. 
June 1 

* Clarendoii, State Papers^ liL App. 93. 

» MayJ3 ^^^ ^Q^^^ iii. 617. 
June 2 



42 LORD STAIR. 

curt answer to both commissions, in which he expressed him- 
self much dissatisfied with these last papers, but left the door 
for negotiation still open, while he closed the mouths of the 
Commissioners by stating his intention to send an express to 
Scotland. " In the meantime,*' he concludes, " I expect and re- 
quire of all my subjects in Scotland such obedience as is due 
to me, their King, by the laws of God, of nations, and of that 
kingdom."* The Commissioners immediately left without 
further reply. Thley landed in Scotland on the 1 1th of June 
and presented a full account of their proceedings to Parliament ' 
and the Assembly' respectively, by whom they were thanked 
for their diligence. The failure of this mission might have 
been foreseen. It was scarcely possible that Charles should 
f^ree to such terms, while any other hope remained. 

On 15th March 1649, just before his deportme for Holland, 
Stair had been named one of a large Commission, consisting 
chiefly of lawyers, with the Earl of Loudoun, then Lord Chan- 
cellor, at their head, which was appointed by Parliament for 
the revision of the law. The Act * appointing the Commission 
proceeded on the preamble, '' that it is most necessary that 
there be a constant, certain, and known model and frame of 
law according to equity and justice established by publick 
authority and published to aU his Majesties lieges ; that 
divers of his Majesties progenitors by Acts of Parliament and 
conmiissions under the Great Seal of this kingdom, have given 
warrants, power, and commission to certain persons therein 
nominated, for revising and considering the Lawcs and Acts of 
Parliament of the kingdome, as well printed as unprinted : the 
pld book of law called Regiam MajedaUem, and the customs and 

1 Act ParL vi. 469. 

* 14th June 1649. Parliament returni thanks to the conmuBnonen, 
Act. ParL vi 451. 

' 10th July 1649. The Assembly returns thanks to the commissioners, 
Baillie, iii. 521. 

* Act. ParL vl 432. 



LAW REVISION PRIOR TO 1649. 43 

pradaces of the seyerall judicatories of the kingdome,as well civill 
as criminall, and for gathering and collecting general Lawes to 
have been perpetually and constantly established for adminis- 
tration of justice within the kingdome, which Commissions did 
never take the wished efiTect, partly by the over-great and im- 
portant affairs of the kingdome, and partly in respect of the 
respective incident troubles of the times." The prior Com- 
missions here referred to were (1.) that of James i., by an Act 
of whose third Parliament in 1425 it was ordained '* that sex 
wise men and discreete of ilk ane of the three Estaites quhilk 
knawis the Lawes best sail be chosen (sen firaude and guile 
aucht to help na man) that sal see and examine the Bulks 
X)f Law, that is to say, Begiam Majestatem and Quoniam 
Attachiamenta, and mend the Lawes that neids mende- 
ment ;'*^ (2.) that of James m. in 1469, when a project for the 
'' King's lawis, Segiam Majestatem, acts, statutes, and uther 
bukes to be put in a volume and to be anthoiizit, and the laif 
to be destroyit,"^ was referred to a Commission of four members 
of each Estate ; (3.) that of John Lesley, Bishop of Boss, in 
1566, by whose suggestion a Commission was issued by Queen 
Mary to certain learned, wise, and expert men who best knew 
the laws — the Chancellor and other Officers of State, Lords of 
Session and Advocates, " to visie, sycht, and correct the lawis 
of this Bealme made be Her and Her maist nobiU progenitouris 
be the avis of the three Estates in Parliament halden be thame 
beginnand at the buikis of the law called Segiam Majestatem 
and Quoniam Attachiamenta and swa consequentlie following 
be progress of time until the dait of this Commission swa that 
na utheris bot the saidis lawis sychtit, mendit, and correctit be 
her saidis traist Counsalouris and Commisaris or ony sax of 
them conjunctUe, sal be be her privilege imprentit or have place 
faith or authoritie to be allegit and reheirsit afoir ony of Her 
Jugeis or Justices quhatsomever." This Commission resulted 

1 1425, 0. 54. * Act. ParL ii. 97. 



\ 



44 LORD STAIR 

in the printed edition of the Statutes from the commencement 
of James l's reign to 1564, but did nothing with regard to the 
earlier laws. (4.) In 1574, under the Begency of Moiton, the 
Convention of Estates appointed the Chancellor, John Lord 
Glammis, William Baillie, Lord Provand Lord President of the 
Court of Session, William Lord Buthven, and other Lords of 
Session and Advocates, ''to visite the Bukis of the Law, Actes 
of Parliament, and Decisionis befoir the Sessioun, and draw the 
form of the body of our lawis alsweill of that quhilk is alreddy 
statute as thay thingis that were meet and convenient to be 
statute,'' " quhairthrow there may be a certaine written law to 
all our Soverane Lordis, jugis, and ministeris of law to juge 
and decyde be."^ The chief superintendence in this Commission 
was confided to Sir James Balfour of Pittendreich and Sir John 
Skene, Lord Clerk Begister. It fell to the ground when Mor- 
ton quitted the Begency, but has left its traces in the Practicks 
of Balfour and the edition of the Early Laws published by 
Skene in 1607, who was again a member of a renewed Com- 
mission appointed by Parliament in 1592.^ (5.) In 1628 
Charles i. granted a Commission, approved by Parliament in 
1633, '' to reid, recognosce, and consider the haill lawis, statutis^ 
and Actes of Parliament, togider with the customes and con- 
suetude^ of the said kingdome quhilk are and have beine ob-^ 
servit as lawis within the same either in the civile or criminal 
judicatoris," " to the effect the samyne may be their allowance, 
ratificatione, and approbatione, be registrated in the buikis 
of Parliament and be maid notour, and known to the haill 
lieges."' Of the labours of this Commission all traces have 
disappeared. 

The Commission of which Stair was a member was granted in 
nearly the same terms with that of Charles h Power was given 

^ ThomsonVi Preface to Act ParL 24 ; Hume of Gockcrof t's Higiory qf 
House of Douglas, p. 358. 

* Thomson's Plrefaoe, p. 26. ' Ibid. p. 29 ; Act. Pari. ▼. 46. 



STAIR COMMISSIONER FOR LAW REVISION. 45 

to the Commissioners to consider the customs and practices 
both of civil and criminal courts, and for this purpose " to order 
the production of all records and registers, together Tvith the 
old registers of the book called £egiam Majestatem in order 
that the Commissioners might compile a formal model or frame 
of a book of just and equitable lawis to be established and 
authorised by his Majestic and Estates of Parliament, and 
might abrogate any byegone Acts of Parliament which had 
fallen into desuetude or become superfluous or unprofitable." 
The report of the Commission was to be considered and revised 
by Parliament, and established as a perpetual law in all time 
coming. like its predecessors, this Commission proved abor- 
tive ; it probably never sat and certainly never reported. Yet 
'we cannot refuse our admiration to these far-sighted, if pre- 
mature, schemed of the Scotch lawyers^ in the fifteenth and 
two following centuries. The troubles of the Commonwealth 
and of the Bestoration were not less adverse than those of the 
preceding period had been to the execution of a work which 
required an era of peace for its accomplishment '' Silent leges 
inter anna." 

The first half of the eighteenth century had its two re- 
bellions to suppress. The abolition of hereditary jurisdictions 
and the final settlement of orderly government and law in the 
outlying Celtic population was for it a difficult work well 

1 Of a siinilar GommiBsioii in 16S1, Foiintaiiiliall [DecisioM, L 165) Bays : 
'* The CommisBioB for reyiBing the laws, Acts of Parliament, practiquea, etc., 
may be naeftil if U takes effect and those conjohied agree or do not toeary/or 
Vfont qf salary to recompenee their pains. It has been often on foot. See an old 
one, Act 54, 1425 ; Act 115, 14S7; Item, the antepenult imprinted Act of 
the Parliament 1587 and the first imprinted Act 1633. But the most ample 
and compreJtensive of them cUlis the printed 41th Act of the Parliament held in 
1649. This is in imitation qf Jtistinian, who employed Tribonian and certain 
other lawyers to review the hooks of law in his time, and who compiled from 
them the Corpus Juris we now use : Tho' some blame them for destroying 
the authors from whom they made their collection, yet it cannot be denied 
there are some oi oar old Acts scarce worth the reading ; but in these days 
the laws of other nations were but very little more polite." 



46 LORD STAIR 

executed. But the century which succeeded the '45 has no 
adequate excuse to offer for not undertaking the work of the 
arrangement of the law, though England and the confused 
chaos^ of her laws, to whose indirect but powerful influence the 
Union subjected Scotland, must bear a portion of the blame. 
It still remains a problem, the solution of which depends on 
the statesmen and lawyers now living, whether the nineteenth 
century will not prove equally impotent. 

A conjecture has been hazarded that his appointment on 
this Commission first led Stair to think of his work on the law 
of Scotland, his chief title to fame ; but of this there is no 
proof. It certainly, however, shows the high character, while 
only a lawyer of one year's standing, he held in his profession, 
and must have induced him to survey in thought the historical 
progress qf the law and the various unsuccessful attempts made 
for its improvement. The contemplation of past failures to an 
energetic mind is a spur to future exertions. What parlia- 
ments and commissions have attempted in vain has sometimea 
been the reward of patient and persevering individual effort. 
But if the thought of arranging the crude mass of Scottish law 
then entered the mind of Stair, it was thirty years before he 
brought it to maturity. 

In October* of this year, Winram, one of the former Com- 
mission, who had become a judge of the Court of Session, and 
was thought by some of his countrymen to aspire to the part 
of kingmaker Monk afterwards played with more success, was 

^ Tet let me not be snppoeed to disparage the gain to Scotland from the 
wealth of English precedents in commercial law and equity. But of its 
arrangement, one of its own most brilliant ornaments gives this account :— 
*' We seem making no progress whatever towards reducing to any intelHgible 
shape the chaotic mass, — common law, equity law, crown law, statute law, 
countless reports, countless statutes, interminable treatises, — in which the 
law of England is by those who know where to look for it^ and not always 
by them, to be found." — (Chief-Justice Ck>ckbum, quoted by Mr. Dudley 
Field in letter to Califomian Law Commission.) 

s 11th Oetober.^Balfour'8 Annal8,iil 432. 



SECRETARY TO COMMISSION TO BREDA. 4T 

sent by the Parliament to Charles, who was then at Brussels, 
but does not seem to have met him till December when Charles 
had removed to Jersey.^ His fortunes were now at the lowest 
ebb. He had no money — not even bread, writes Winram,* for 
himself and his servants. Ormonde's Irish expedition had 
miscarried. CromweU marched from victory to victory. The 
Spanish negotiations intrusted to Hyde made no progress. 
Scotland now seemed his only refuge, and in reply to the 
letters sent by Winram he wrote to the Parliament' request- 
ing that Commissioners might be sent to treat with him at 
Breda on 15th March/and to the Moderator of the General 
Assembly entreating him to use his credit with the ministers 
"to persuade them to a reasonable moderation."* With the 
duplicity of his race he was writing to Montrose, then prepar- 
ing for an invasion of Scotland, almost at the same moment 
that the proposed treaty with the Scots was to be no impedi- 
ment to his proceedings.^ 

In compliance with the request of Charles, the Estates,^ on 
8th March 1650, appointed the Earls of Cassilis and Lothian, 
Winram and Brodie, Sir John Smith and Alexander Jafifray, as a 
Commission to repair to the King at Breda, or any place where 
the Beformed religion was professed. To this Commission, which 
was almost identical with that of the preceding year. Stair was 
reappointed secretary. Like the former it was accompanied by 
a Commission from the Assembly consisting of Mr. John living- 

^ Letter, Sir J. Berkeley to Hyde, 3d December 1649. Clarendon [StaU 
PaperSj ii. 499) mentions that Winram was then expected at Jersey : ** I 
believe he will think he hath made a good voyage if he escape with a broken 
pate ; the gaUants talked, before I came away, of throwing him over the 
wall." 

' Letter, Winram to Mr. B. Douglas. — Baillie's Letters, iii 522. 

3 Clarendon, StcUe Papers, iii. App. 93. Letters from Charles to Com- 
mittee of Estates, 11th January, o.s. 

^ Letter, 15th February 1649, Charles n. to Mr. R. Douglas.— Baillie's 
Letters, App. iii. 525. 

« Clarendon, 8taU Papers, iii App. 94. ^ Baillie's Letters, iii 524 



48 LORD STAIR 

stone, minister of Ancrum, who has left a characteristic account 
of its proceedings, Mr. James Wood, Professor of Divinity at 
St Andrews, and Mr. Greorge Hutcheson, one of the ministers 
of Edinburgh, with the Earl of Cassilis and Brodie as ruling 
elders. The Commissioners were from the first divided into 
opposite camps. Cassilis, Brodie, and Jaflfray, with the minis- 
ters sent by the Assembly, were against treating without the 
most stringent pledges by the Elng to the Covenant Lothian, 
Winram, and Smith^ were ready to be content with more 
moderate terms — anxious at all hazards to have a king back as 
head to the government Stair, it appears, leant to the latter 
party, and it is probable that his services on this occasion pro- 
cured him the favour of Charles' when after the Bestoration it 
went hard with those who had accepted office under the Com- 
monwealth. The proceedings opened, as in the former mission, 
by a speech ou the part of Cassilis for the Parliament and of 
Livingstone for the Kirk, and the latter complains that the ex- 
pressions he wished to use were toned down by the other Com- 
missioners to make his address '^ more savourie to the King."* 
The propositions submitted were : First, That Charles 
should subscribe the Covenant and establish Presbyterian 
government and worship ; Second, That he should acknowledge 
the authority of the preceding Sessions of Parliament, and 
ratify their Acts ; and Third, That he should put into execution 
all Acts against the toleration of Popery, a^d annul all con- 

^ In a petition by Smith to Charles n. after the Restoration, he says : 
" Yonr petitioner being in the year 1660 one of the Scots Commissioners that 
attended your Majesty at Breda, did stretch himself most faithfully in that 
station to do service to your Majesty, and advanced certain sums of money 
for the expense of your Majesty's voyage to Scotland, and by public order 
provided and sent over arms and two vessels laden with oats for your 
Majesty's army that then lay at Leith." — ^Lauderdale Mss., British Museum, 
13. 233 ; see Act ParL vil App. 82 and 85. 

s « The king took particular notice of him," observes the author of An 
ImparUcU Account <if some of the TranMcUons in Scotland, — See a letter from 
a Friend, Somers Tracts, Scott's Ed. iL p. 650. 

' Livingstone's Life. — ^Wodrow .Society, Select Lives, p. 172. 



STAIR RETURNS WITH CLOSED TREATY. 49 

traiy tieatie&^ The Commissioners of the Kirk added ^ a pro- 
test against the commission granted to Montrose. After these 
papers were delivered, Lothian, Winram, and Smith went to 
Brussels and Antwerp, which caused over a week's delay. 
The King's reply ' was a request to know if these were the 
whole proposals of the Commissioners; to which they answered,* 
that these were the substance of all they were desired to tender. 
The contrast between the Courtiers and the Covenanters must 
have been striking to an observant eye. The former described ' 
the latter as '^ brazen-faced rebels and barbarous brutes." The 
Earl of Cassilis openly rebuked the Marquis of Newcastle for 
swearing, and the Presb3rterian ministers were indignant that 
Charles amused himself, while the negotiations were in pro- 
gress, with " balling and dancing till near day," ^ and not less 
that he still continued the use of the Service Book. Yet ne- 
cessity united these strange opposites. 

The King's reply ^ to the three propositions was a consent to 
the first and second, and to the third, with the exception of de- 
claring null all treaties with Papista He promised to take 
the Covenant as soon as he arrived in Scotland. He demanded, 
however, at the same time, the full exercise of Ids royal autho- 
rity, the security of his person, the restoration of the Lords of 
the Engagement, a general reconciliation of parties, and the 
assistance of a Scotch army to recover England. The Commis- 
sioners substantially assented to these demands on condition 

^"~^ CUrondon, SkUe Papers, iL App. p. 2. 
April 4. 

« March 25. caarendon, /State Pap<r«, ii. App. p. 53. 
Apnl4. 

' April 9. Clarendon, State Papers, ii, App. p. 54. 

^ April — ^ Clarendon, State Papers, ii, App. p. 50. 
14. 

^ See Letter by B. W. to William Edgeman, April 22, 1650 ; Clarendon, 

State Papers ; Macrae'g Calendar, p. 52. 

^ liyingrtone'g Life, p. 174. 

^ Clarendon, State Papers, ii App. p. 58 (Note). April 27. 

D 



50 LORD STAIR 

that he accepted the Covenant ; and on the 9th of May they 
addressed to him a formal invitation to come to Scotland. 
With this paper and the King's consent to the propositions, 
together forming the closed treaty, Stair was sent back to Scot- 
land, having been, in the opinion of Livingstone, " a little too 
much forward for that same way of closing the treaty/' ^ The 
Commissioners of the Kirk continued to press Charles 
to a more decided declaration against Papacy and Prelacy, 
and remonstrated ' with him, in strong language, on his con- 
tinuing the practice of kneeling at the Communion, ''which 
could not fail to provoke the anger of God.'' The Scotch 
Parliament was not satisfied with the treaty Stair brought 
home, and sent new instructions ' to their Commissioner, re- 
quiring them to demand the King^s consent to their former 
propositions without qualification, that he should exclude from 
his court all persons falling within the first and second Classes 
of the Acts of 1646 and 1649,^ and keep out of Scotland the 
Duke of Hamilton and other specified persons. When these in- 
structions arrived in HoUand the Commissioners and the King 
were on the eve of embarkation for Scotland,^ but they do not 
appear to have communicated the new form of the demands 
of Parliament till they had set saiL While at anchor ofiT 
Heligoland,* on board the ship " Schiedam," these were pre- 
sented to Charles, who gave a reluctant assent to them ; but 
his subscription to the Covenant was still deferred, and only 
when at anchor at the mouth of the Spey, on Sabbath morning 

^ LivingBtone's Hfe, p. 177. 

* See these Papeni — dArendon, State Papers, iL App. pp. 62, 68. 
' 18th May, cs. Clarendon, State Papers, ii. App. p. 59. 

* Theae were^** The Act anent the Glaases and Degrees of Delinqiients 
not to be processed to death," 8th Jannary 1646, Act. ParL vi. 203 ; ** The 
Act of Classes for purging the Judicatories and other places of pubUck 
Trust," 23d January 1649, Act. ParL vi 352. 

^ livingstone's Life, p. 180 e< seq, 

^ Clarendon, State Papers, ii. App. p. 63. 11th June, 0.8. See Macrae's 
Calendar, p. 64, as to mistake in date. 



CHARLES 11. A COVENANTED KING. 51 

the 23d of June, after a sermon preached by Livingstone,^ 
the last step was taken, Charles swore to the Covenant, and 
landed, to use an expression of the times, a Covenanted king. 

Neither the contrition afterwards expressed by Living- 
stone, Brodie,^ and Jafi&ay, for their share in the treaty, nor 
the scorching contempt of Cromwell, can be deemed mis- 
applied to this transaction. " For the outward part of swear- 
ing and snbscriving the Covenant," writes the minister of 
Ancnim, 'Hhe King performed anything that could have been 
required ; but it seems to have been the guUt, not of the Com- 
missioners only, but of the whole kingdom, of the State and of 
the Church, who knew the terms whereupon the State was to 
admit him to his government, yet without any evidence of ane 
reall change in his heart, and without forsaking former prin- 
ciples, counsells, and company." 

" We did sinfully," confesses Jaffray, " both entangle and 
engage the nation and ourselves and that poor young prince, 
to whom we were sent, making him sign and swear a Covenant 
which we knew firom clear and demonstrable reasons that he 
hated in his heart."^ 

" But that," wrote Cromwell to David Lesley, *' under the 
pretence of the Cov^iant, mistaken and wrested from the most 
native intent and equity thereof, a King should be taken in 
by you to be imposed upon us ; and this called ' the cause of 
God and the kingdom,' and this done upon ' the satisfaction of 
God's people in both nations,' as is alleged, together with a dis- 
owning of Malignants ; although he who is the head of them, 
in whom all their hope and comfort lies, be received, who at 
this very instant hath a Popish army fighting for and under 
him in Ireland ; hath Prince Bupeit, a man who hath had his 

1 liyingstone's Life, p. 182 : " It was laid on me to preach the next 
Sabbath, when he should swear it (i.e. the Covenant), and to read the National 
GoTenant and the Sdlenm League and Covenant^ and to take his oath." — See 
also Livingstone's Letter to R. Douglas, p. 259. 

> See Biodie's Diary, p. 189. ' Jaffiray's Diary, p. 55. 



52 LORD STAIR. 

hand deep in the blood of many innocent men of England, now 
in the head of our ships stolen from us upon a Malignant ac- 
count ; hath the French ships, daily making depredations on our 
coasts, and strong combinations by the Malignants in England, 
to raise armies in our bowels, by virtue of his commissions, who 
hath of late issued out very many to that purpose. How the 
interest you pretend you have received him upon, and the 
Malignant interests in their ends and consequences centering 
in this man can be secured, we cannot discern.'** 

On the 20th of May Stair was appointed by the Parlia- 
ment, along with Sir Arthur Erskine of Scotscraig, to meet the 
the King and Commissioners at their landing,^ and probably 
accompanied him in his progress to Falkland. Before leaving 
Edinburgh he had been a witness of the gallant end of the 
chequered life of Montrose,' who was executed on the 21st, 
and carried the news of it to Charles, a tale which must have 
raised a pang, if sorrow were possible in a heartless breast.^ 
Fortunately for himself. Stair had abandoned the military pro- 
fession, or he might have shared in the disaster of Dunbar 
(where lus colleague Winram met his death), and the final cata- 
strophe of Worcester. 

We do not again find any trace of Stair till 1654, but his 
time was doubtless occupied in the interval in the practice of 
his profession and in study. 

^ Cromwell to David Lesley, 14th August 1650. From the Camp at 
Pentland Hills. 

' Balfour's AnncUSf iv. 18. 

* <<He got some resolution after he came here how to go out of this 
world," writes Argyle to Lord Lothian, " but nothing at all how to enter 
another, not so much as once troubling himself to pray at all upon the 
scaffold, nor saying anything on it that he had not repeated many times 
when the ministers were with him. For what may concern the public I 
leave it to the public papers and Mr, James Dalrymple^s relation,'* Note to 
Kirkton's History, p. 124, quoted by Burton, vL 260. 

* '* He had an appearance of gentleness in his outward deportment. But 
he seemed to have no bowels, no tenderness in his nature, and in the end of 
his life he became crueL" — ^Bumet's History, L p. 612, 



INTIMACY BETWEEN HOLLAND AND SCOTLAND. 53 

These two visits ta Holland form an important epoch 
in his life. That small republic,^ reared on land won 
from the sea and the tyrants of Spain, was then earning the 
honourable character which it shares with Britain of the exile's 
home. '' It was a maxim of long standing amongst us/' said 
their ambassador Birel to Charles IL, '' not to inquire upon what 
account strangers came to live in our country, but to receive 
them all unless they had been concerned in conspiracies against 
the persons of princes."* The Pilgrim Fathers or the Eoyalist 
refugees, French Protestants and German Catholics, adherents 
of Prelacy, Presbytery, and Independency, found an equal wel- 
come on its hospitable soil' Stair himself, in his adversity, 
was to claim and receive that welcome for which at this time, un- 
conscious of the future, he was making preparations, by learning 
to know the people, their customs, and perhaps their language. 
Between the Scotch and the Dutch there had been, since the 
Beformation, a strong sympathy founded on common religious 
ideas and reciprocity of trada At Middleburgh and Campvere^ 
there were Scotch settlements with peculiar privileges. At 

^ " Ad BaiaTUB oram ex piBcatoriis aliquot navigiis nova repente Respnblica 
eztulerit caput : qusB armia indies prssyalida superiorem pati nee teira yelit 
nee mari jam poasit; que magniii per oceanum classibuB ad remotissimos 
terranun tractus coloniaa invenerit quas statis apud Principes legationibus 
mutuiaque foederibus non minorem se Regibas ferens novum sibi in Europa 
principatnm asseruerit.'* This ia the language of the Jesuit Strada, de Bella 
JBdgieo, liber primus. 

* Burnet's History of His Ovm Ttmes^ L 81. The nde waa more strictly 
observed than the exception. "I saw," observes Burnet himself, **much 
peace and quiet in Holland, notwithstanding the diversity of opinions 
amongst them, which was occasioned by the gentleness of the Government, 
and ti^e toleration that made all people easy and happy." — i 207. 

' As to the British in Holland in 1688, Macaulay says, *< the Hague was 
crowded with British adventurers of all the various parties which the 
tyranny of James had united in a strange coalition, old Royalists, who had 
shed their blood for the throne, old agitators of the army of the Parliament, 
Tories who had been peraecuted in the days of the Exclusion Bill, Whigs 
who had fled to the Continent for their share in the Rye House Plot" — ii 453. 

* See Erskine's Institutes, L 4. 34, as to the conservator of the Scotch 
privileges at Campvere, and the Acts 1503, c. 81, 82 ; 1579, c. 96, 97. 



54 LORD STAIR 

Eotterdam, Amsterdam, Dort, Leyden, the Hague, and many 
other places, there were Scotch congr^ations ; the United 
Provinces had a Scotch brigade of three regiments in their 
service;^ Scotch students frequented the Universities of 
Leyden, Utrecht, and Franeker, where, as in the French Uni- 
versities of the 16th century and the German of the 19th, 
the Civil law of Bome had then its best interpreters. 
Grotius, the greatest name amongst Dutch, perhaps amongst 
modem European jurists, had died four years before Stair's 
first visit, but Paul Yoet,^ the father of the more famous 
John Voet,* Vinnius,* and Matthaeus were then in their prime. 
The Dutch school of jurisprudence was contrasted for its 
elegance^ with the German, and was reckoned the successor 
of the French in the combination of classical learning with 
legal talent Salmasius,^ one of the best examples of this com- 
bination, was engaged during Stair's visits in his Defensio Regia 
pro Carolo Primo, to which Milton replied in his Defensio 
pro Popvio Anglicano, which cost the poet^ his eyesight, and 
is said, though with doubtful truth, to have shortened the life 

^ Burton's History, i p. 14. 

> Paul Voet, son of the theologian Gisbert Voet, bom 1619, died 1667, 
was a Professor at Utrecht. His best-known work, DeStcUuiis et eorum Con- 
eursUf is stiU refeired to oooasionaUy in onr Conrts on questions of inter- 
national law. 

' John Voet, his son, a Professor at Leyden, bom 1647, died 1714, was 
the author of the somewhat yerboee but oomprehensiye work on the Pandects, 
from which several generations of Scotch lawyers borrowed their quotations 
from the Boman law. 

* Vinnius, bora 1588, died 1657, published in 1642, at Leyden, his Com- 
metUariea an the IngtUtUes. 

^ Some good judges in the present day regard the best Dutch writers as 
better masters of style than the (Germans. 

Bom 1588 at Saumur, studied at Heidelberg, an Advocate at Dijon, 
and afterwards Professor at Leyden ; died 1658. 

^ In his second sonnet to Gyziac Skinner, Milton saya^ alluding to his 
own blindncos 

"What supports me, dost thou askT 
The conscience, Friend, to have lost them overpiied 
In liberty's defence — my noble task." 



DUTCH JURiaPRUDENCE. 56 

of his adversary. He was visited at Leyden, where he was 
Professor, by Stair, who must then probably have made the 
acquaintance of some of the other leaders of the Dutch juris- 
prudence. However this may be, his Institutions show he 
carefiilly studied their writings/ and was imbued with their 
liberal and philosophical spirit, which transmuted the letter of 
the Boman law, and adapted it to the advancing civilisation 
and extending commerce of the age. Thus the modem 
European Jus Oentium flowed from Holland by a direct channel 
into the law of Scotland, and helped, as in the preceding 
centuries the Canon law had done, to preserve its equitable 
character, and to make it more cosmopolitan and less insular 
than that of England. 

^ Of the Dutch jnriBts Stair quotes by name only Grotius andGudelinus, 
but that frequently. The references to Grotius are the foUowing: — Inst. 
L 1. 17» Law, a rational discipline ; L 2. 6, Liberty only limited by the 
rights of others; i 5. 2, I>i8tinction between pupillarity and minority; 
L 7. 2, Obligations arising from rights of property are by tacit consent* an 
opLoion which Stair controyerts, alleging that they arise from the will of 
God; L 8. 31, Becompence, as to whidi there is a similar diyergence of 
opinion ; L 10. 31, Necessity of acceptance to make a promise binding ; L 
10. 13, Permutatiye contracts and enorm lesion ; ii. 1. 39, Appropriation 
by accession; iy. 40. 23, Lying to enemies lawful, which Stair denies. 
Gudelinus, Professor at Lonyain, is mentioned in the following passages : — 
L 4. 12, Jus mariti Gudelinus sheweth the same to be the condition of the 
Netherlands, in which they do almost in eyerything agree with our customs ; 
L 6. 12, Obligations between parents and children; i. 6. 3, Obligationa 
between tutors and pupils ; L 10. 7t Eyery paction produces action, contrary 
to the Boman law rule, "ex nudo pacto non oritur actio ; ** iL 4. 18, New in- 
yestiture on change of yassaL 



CHAPTER IV. 
1650-1661. 

stair advocate and judge during the Ck>mmonwealtli— Sketch of influence of Crom- 
well's government in Scotland — Stair and other advocates refuse to take the 
Tender— The Tender laid aside— Stair one of Committee for restoration of the 
Outer House— Death of Sir James Learmonth, Lord Balcomie, one of the Com- 
missioners for the administration of justice— Stair ap}>ointed his successor by 
Monk — His appointment confirmed by Cromwell — His intercourse with the 
English judges gave him an opportunity of learning English law — Builds the 
house called General's Entry — His intimacy with Monk, who consults with him 
before he marches to England — ^Visits London on accession of Charles n. 
— Appointed one of the Judges of Court of Session in new nomination — His 
wife's estate of Cancreoch, in Galloway, his country residence. 

The victory of Worcester, Cromwell's " crowning mercy/' 
on 3d September 1651, the anniversary of Dunbar, settled the 
Bepublic as the form of government for England ; and the 
storming of Dundee by Monk, two days before Worcester,^ 
had the same result in Scotland, though that general was not 
idle during the two next years, and had to be sent back in 
165^ to complete the work of subjugation.^ For the latter 
country at least the new government was one of force,* but it 

1 Carlyle's OromweU, ii 298. 

s « There rose afterwards rebellion in the Highlands — ^rebellion of Glen- 
cairn, rebellion of Middleton, with mncli moss-trooping and horse-stealing ; 
but Monk, who bad now again command there, by energy and vigilance, by 
patience, punctuality, and slow, methodic strength, put it down, and kept it 
down. A taciturn man, speaks little, thinks more or less, does whatever is 
doable here or elsewhere." — Carlyle's OramweU, iL 299. 

' May 1652. " Letters that the declaration of the Parliament of England 
for the union of Scotland with England, and the sending of members to the 
Parliament of England, was proclaimed with great solemnity at Edinhnrgh 
Cross ; hut the Scots showed no rejoicing <U it" — ^Whitelocke's MeftnoridU^ 
p. 532. " So remarkable was onr loyalty," writes Sir (George Mackenzie, 
** in the world and amongst strangers, that his Majesty was always called 



SCOTLAND UNDER THE COMMONWEALTH. 67 

was force in the main guided by wisdom. In all departments 
of pubUc affairs there was vigour and the spirit of reform. 
" There was good justice done/' says Burnet, " and vice was 
suppressed and punished, so that we always reckon those 
eight years of usurpation a time of great peace and prosperity.'' 
" Cromwell," observes Sir Walter Scott, with characteristic can- 
dour, "certainly did much to civilize Scotland."^ An incor- 
porating union between the two countries was devised, though 
not folly perfected. The Parliament of Scotland ceased to meet, 
and during the short time during which Cromwell tolerated a 
Parliament in England, Scotland was nominally represented 
in it by thirty members.' A council, which sat at Dalkeith, 
presided over by Lord Broghill, formed the executive ; but all 
matters of importance were referred to Cromwell himself.' 
Free trade and an improved Postal system^ between the two 
countries were established. The Universities were visited,^ 

King of Scots ; and it was belieyed and presumed, in aU places where our 
natiyes trayeUed, whether in England or beyond sea, that a Soot was still a 
Boyalist"— ^Mtory, p. 22. 

^ Notes to Diyden's Heroic j9toR«u— the passage oontinnes ; " Some of 
his benefits were intentionally conferred, others flowed indirectly from the 
measures he adopted for the consolidation of his own authority. The Eng- 
liah judges ti^iom he appointed introdueed into the adminiatration qf justice a 
purity amd vigour witk u^Uch Seotlcmd had been hitherto unacquainted. By 
the impoyerishment» exile, and annihilation of the principal baronial families, 
the chain of feudal bondage was lightened upon the peasantry, and the pay 
of 18,000 men, levied to maintain the constituted authorities, enriched the 
lower orders amongst whom it was spent. The English soldiers also intro* 
duoed into Scotland some of the arts of a more civilized country." So Bos- 
well writes in the Tour to the Hebrides, p. 85 : " Dr. Johnson laughed to hear 
that OromweU's soldiers taught the Aberdeen people to make shoes and 
stockings and to plant cabbages." 

' Ordinance of the Protector, 1654. 

' Lord Broghill's CouncU was not appointed till 1655, but there had been 
a prior Commission sent by the English Parliament in 1652, of the proceed- 
ings of which Lament gives a concise account in his Diary, p. 37. Amongst 
these he mentions that "they discharged all judicatories, viz.. Lords of 
Session and GounseD, Shyrra Courts and Commissary Courts," and that '*they 
established a judicatorie of Sequestration at Leith, viz., Mr. Saltonstall and 
Mr. Disbourg." 

* Ordinance of the Protector, 17th December 1655 ; quoted by Burton, 
viL 320. * Lament's Diary, Sept 1652, p. 47. 



58 LORD STAIR 

and grants were given them from the Church reveniies. 
The Greneral Assembly of the Church, which had become far 
too powerful to co-exist with a settled civil government, was 
dissolved.^ The Church judicatories were reorganized, and 
the excesses of the clergy kept in check by the strict enforce- 
ment of the jurisdiction of the Civil Court as to the recovery 
of stipends. The system of Patronage, which had been re- 
stored to the congregations in 1649, and caused hot disputes 
between the parties of the Besolutioners and Bemonstrants, 
was altered and intrusted to a Commission of forty ministers 
and twenty elders.* 

In no department was the reform more radical than in the 
administration of justica The Court of Session had never 
been popular.* Its judges were accused, with good cause, of 
arbitrariness, partiality, and bribery, and crimes of deeper dye 
had in some cases disgraced the judicial office. A separate 
Supreme Court for Scotland was still retained, but its constitu- 
tion and procedure were completely changed. The Court of 
Session sat for the last time on 28th February 1650, and on 
18th May 1652 Commissioners for the administration of jus- 
tice were appointed under the Great Seal of the Commonwealth. 
Instead of fifteen Judges or Ordinary Lords, including the 
President, the number of which the Court had consisted since 
its institution in 1532 by James v. on the model of the Parlia- 
ment of Paris, seven Judges were appointed, four of whom 

^ BailUe's Letten^ iu. 225 ; Lamont's Diary, p. 57. 

* Lamont's Diary, p. 92. 

' lifting, History of Scotland, L 446 and 522, where he quotes Bnchanan 
and Johnston. The former writing in 1 5S2 says, ** Nam com in Scotia nuUsd 
pene sint l^ges pn^ter oonventanm decreta, eaqne plera non in perpetunm 
aed in tempna facta^ jndioesqae quod in se est lationem legnm impediant 
omnium ciyiam bona qnindecim hominnm arbitrio sunt oommissa quibus et 
perpetua est potestas et imperium plane tyrannicum quippe quorum arbitria 
sola sunt pro legibus." — Buchanan. Bi&L, lib. xiv. 273. The latter writes 
in 1597, "Hao tempestate totus ordo judicum pauoorum improbitate et 
audacia infamatus. Inyeteravit tum opinio et omnium sermone percrebuit 
pecuniosum hominem neminem potuisse causa cadere." — Johnston. Hiat., 
p. 231. 



CROMWELnS JUDICIAL REFORMS. 59 

were English lawyers.^ There was no President, each Judge 
taking the chair weekly in rotation. The Extraordinary 
I^rds,' whose votes had sustained the influence of the 
Crown and the Nobility, disappeared. The Outer House, in 
which the Judges sat singly by turns, was suppressed, and 
all causes were heard at once by the Court itsel£ Feudal 
tenure and its concomitant, the hereditary jurisdictions, were 
abolished,' and regular circuits of the Supreme Judges 

^ The four English were Moseley, March, Owen, and Smyth, and their 
Scotch coUeagnes, Sir John Hope of Oraighall, son of Sir Thomas Hope, the 
Lord Adyocate of Charles L, Colonel William Lockhart, brother of Sir 
George Lockhart, President of the Court of Session under Charles n., and 
John Swinton of Swinton. 

' The existence of these Extraordinary Lords was one of the marks of the 
descent of the Court of Session from the Domini Auditores, a Committee of 
Parliament, and their position may be compared to that of the lay lords of 
the Engfish House of Lords, who, down to the time of O'ConneU's trial, used 
to sit and sometimes yote in the Court of AppeaL They were reintroduced 
at the Bestoration, but abolished in 1723, by 10 Geo. L c. 19. 

' " That aU and every the heritors and others the persons aforesaid and 
heirs are and shaU be for ever hereafter freed and discharged of and from aU 
suits and appearing at or in any of their lords' or superiors' Courts of Jus- 
ticiary, regality, stewartry, barony, bailiary, heritable sheriffshipe, heritable 
admiralty, and aU which, together with aU other offices heritable and for 
life, are hereby abolished and taken away ; and that all and eyery the per- 
sons aforesaid and their heirs are and shaU be for eyer hereafter freed and 
discharged of and from aU their military service and personal attendance 
before any of their lords or superiors in expeditions or in travels, and of aU 
casualties of ward lands formerly held of the king and other superiors, and 
of the mairiage, single and double avail thereof, non-entries, compositions 
for entries, and of aU rights and casualties payable, if they be demanded 
only or upon the committing of any clause irritant, and that the said heri- 
tors and persons aforesaid be now and from henceforth construed, reputed, 
adjudged, and declared free and acquitted thereof." — Ordinance of the Pro- 
tector quoted by Burton, vL 318, from Brace's Report on the Union, p. 69. 
The former vassals were to hold " by and under such yearly rents, boons, 
and annual services as are mentioned and due by any deeds, patents, 
charters, or inf eoffinents now in being of the respective lands therein ex- 
pressed or by virtue thereof enjoyed, without rendering, doing, or perform- 
ing any other duty, vassalage, or command whatsoever." More than two 
centuries have passed, and every one is now satisfied of the necessity of this 
reform, but the statesmen and lawyers who have lived in the interval have 
not yet been able to place in the Statute-book what CromweU accomplished 
by this single ordinance. 



60 LORD STAIR 

held} The use of Latin in legal writings was done away.' 
New instructions were issued for Justices of the Peaoe,^ an 

^ '* September 1652. That the new Judges made and sent from England 
went the circuites in Scotland.'' — ^Whitelocke's Memorials, p. 543. 

' " They (t.e. the English Judges) discharged any Latin charter to be 
written hereafter or any Latin words to be in bonds or obligations, bot 
everything to be in English." — Lament's Diary, 42. See as to changes 
made in writs, NicoFs Diary, 94, 96. So also in England an^Act was 
passed in 1650 " for turning all books of law into English, and for all pro- 
cesses and proceedings in Courts of law to be in English." — ^Whitelocke's 
MemoriaU, p. 477. There had not been wanting Scotch reformers of an 
earlier age who had struggled for the introduction of the yulgar tongue in 
l^al proceedings. Thus Sir David Lyndsay writes in his Dialog beiwix Ex- 
perience and one Courteour : — 

" I wald sum Prince of gret discretioun 
In vulgare language planelye gart translate 
The needful Lawis of this Regioun ; 
Than wald thare nocht be half so gret debait 
Amang us peple of the law estait 
Geve every man the verytie did knaw 
We nedit nocht to treit tfair Men of law. 
TyU do our nychtbour wrang we wald be war 
Gyf we did feir the lawis punysment 
Thare wald nocht be sic brawling at the bar 
Nor men of law loup to sic royall rent 
And ilk man do as he wald be done to 
The Jugis wald get lytiU thing to do. 



Lat doctores wrytt thaire curious questionis 
And argumentis sawin full of sophistrye 
Thare Logick and thare heych opinionis 
Thare dirk jugementis of Astronomye 
Thare Medecyne and thare Philosophye 
Lat Poetis schaw thare glorious ingyne 
As ever thay pleis in Greek or in Latyue 
Bot let us haif the Bukis necessare 
To commoun weiU and our salvatioun 
Justlye translatit in our toung vulgaire." 

' The Declaration and Order of His Highness's Council in Scotland 
requiring aU Persons to give due obedieuce to the Justices of Peace in 
execution of the powers and authorities given them by the instructions 
hereunto annexed issued in 1655, are printed in Hutcheson's JvMice <^ ike 
Peace, App. L No. 8. Li the previous year a new jurisdiction of Courts 
Baron had been created. *'1654, May, — ^Ther was a paper emitted by 
the forsaid Protector and his Connsell for erecting Courts Baron in Scot- 



THE ADVOCATES REFUSE THE TENDER. 61 

office introduced by James VL from England for the administra- 
tion of minor cases of criminal and civil justice^ but which 
before this time had not taken firm root in Scotland. A 
stringent Act was passed for the suppression of theft upon 
the Borders of England and Scotland, the discovery of high- 
waymen and other felons.^ 

The design of these changes was obviously to hasten that 
assimilation of the laws of the two countries which was neces- 
sary to make the Union complete. But due allowance had not 
been made for the* conservative force of legal institutions and 
the power of resistance possessed by the legal corporation. 

In 1654 all- the most eminent advocates, including Stair, 
refused the Tender or Oath of Allegiance to the Commonwealth 
and Abjuration of Boyalty, and withdrew from the bar. A 
tradition has been often repeated that a consequence of this 
was the introduction of the voluminous written pleadings, 
necessary, it was said, to instruct the English Judges ignorant 
of Scotch law, which down to a very recent period were an evil 
characteristic of Scotch procedure,^ these being drawn at home 
by the advocates who had seceded, and signed by their less 
able and more complying brethren. Probably this is an error. 
Long written papers, both in criminal and civil suits, were cer- 
tainly in use before this period, and the few reported decisions 
of the English Judges are creditable specimens of reasoning 

land to be holden every three weecks, which Court sould have powir, order, 
and jariBdictioii of aU contracts, debts, promises, and trespasses whatsoeyer 
arising within ther onne precincts and bounds, provided that the meates in 
demande exoeide not the value of fourtie sh. sterling." — ^Lament's Diary, 71. 
What the constitution of these Courts precisely was is obscure, but it appears 
improbable that they had anything but the name in common with the old 
Courts of barons and freeholders, as to which see Stair, Inst, ii 3. 63. 

1 Adv. libr. H. 33, a 

* It has been remarked with reference to this that Scotch lawyers wrote 
aU they spoke, and printed all they wrote. A defender of the old system of 
written pleadings might retaliate that legal learning is not so thorough or 
exact since they have gone into disuse, and that much which is now spoken 
no one would venture to write, still less to print. 



62 LORD STAIR 

and knowledge of the law. The uprightness of these Judges 
was universally acknowledged,^ and was the occasion of the 
shameless saying, attributed to one of their successors after the 
Eestoration, who, being reproached with the difference between 
their administration of justice and that of the Scotch Judges, 
replied, ''De'il thank them, a wheen kinless loons.'' ' This 
secession of the advocates, indeed, did not last sufficiently long 
to have had much influence on l^;al proceedii^igs. The assist- 
ance of the bar was found indispensable as on a subsequent 
occasion, when Stair took a more prominent part on the oppo- 
site side, and the Tender had to be laid aside.* 

Soon after their return to practice the advocates appointed 
a committee of four, of whom Stair was one, to declare to the 
Judges that they were in favour of the restoration of the 
ancient form of the Outer House,^ and in consequence of these 
remonstrances that House was re-established^ in 1656, and has 
existed ever since. It is curious that the abolition of the 
Outer House, a cardinal point in Cromwell's changes, is con- 
sidered by some persons ^ of authority at the present day as 
now necessary for the reform of the Court 

^ ** And to speik trueth the EngUsohes wer more indulgent and mercifiU 
to the Soottis nor wer the Soottia to thair ain countrymen and nychtbooria 
aa wea too evident, and thair joatice exceided the Scota id many thinga aa 
wea reputed.*'— Nicol'a Diary, 104. 

^ Thia aaying haa been attribnted both to Freaident Gilmonr {(^rt qf 
Session Garland, Ed. 1839, p. 4), and to Dalrymple, Preeident of the Conrt of 
Seaaion (Godwin*a History qf the Commonvfealth, iii 314). Whether Stair or 
hia aon Hugh, who ancceeded him aa Freaident, ia intended doea not appear. 
Both acoonnta are of oourae pnrely traditional Godwin aaya he got hia 
" from a Scotch gentleman whom it wotdd do me honour to name. Bnt I 
refrain from motiyea of delicacy." 

' Stair'a Apology, p. 4. ^ Forbea'a Freface, p. 81. 

* ** When a good correapondence betwixt the bench and the bar waa 
begun, the Outer Houae waa reatored upon an addreaa to that end made to 
the Commiaaionera l^ the Faculty of Advocatea, 4th July 1655." — Forbea'a 
Freface, p. 16. 

* Lord Juatice-Clerk Moncreiff.— -Scotch Law Commiaaion, Fourth Report, 
p. 45. Sir Boundell Fahner, Uridem, 



APPOINTED JUDGE BY MONK. 63 

On 26th June 1667 Sir James Leannonth, Lord Balcomie,^ 
who had been appointed little more than eighteen months pre- 
viously one of the Commissioners for the administration of 
justice owing to the pressure of business in the Outer House, 
died on the Bench, an event which the superstition of the 
times deemed a national judgment^ It had been already in 
contemplation to appoint a new judge, and Monk had, three 
days before Balcomie's death, pressed the claims of Stair in 
the following letter to the Protector : '' May it please your 
Highnesse, having received this inclosed letter from my Lord 
Brodie in answer to your Highnesse's offer to him to bee a judge, 
and perceiving he is not free to it, / make hold to mention to 
your Highnesse one Mr. James Dalrymple as a person fit to lea 
judge, being a very honest man, a good lawyer, and one of con- 
siderahle estate. There is scarce a Scotchman or Englishman 
who ha>ih bin much in Scotland bu^t knows him, of wham your 
Highnesse may inquire further concerning him,**^ Balcomie's 
death and the state of business in the Court rendered it neces- 
sary that a successor should be at once appointed, and accord- 
ingly, on the afternoon of the day of his death, the Council of 
Scotland filled the vacancy by raising Stair to the bench, and 
Monk wrote to Cromwell informing him of what had been 

^ ** CTpon the death of Lord Baloomie, the Council of State, finding the 
Court of Session weak and wanting one of their quomm by reoMn of the 
ahgence qf iome attending the ParUammt of England tn London^ urged Mr. 
James Dalrymple to take his place, and promised to procure him a patent for 
bruikiug of the place ad vitam auJt cti/pam."^H& Diary in Wodrow's CoUeC' 
Hon, Adyocates' Library. 

* "A man yerie painfull in his office, and willing to despatch business, in 
this sad time depairted this lyfe eyen in a moment sitting upon the bench in 
the Parliament House about oyne in the doke in the morning to the great 
grieff of much people. His corps was honourablie buryit in the Church 
kirkyeard in Edinburgh with such numbers of people as was admirable, and 
hard mumers befoir and foUowing the bier aboye fyye hundred personis. 
Hi» removaXfra that bench was esteemed to he a national judgment,** — KicoFs 
Diary, p. 198. 

s Thurloe, 8tatfi Papers, yi 367. 



64 LORD STAIR 

done : " May it please yottr Highnesse I am appointed by yonr 
Highnesse Council here to acquaint your Highnesse that 
some few weeks since the Lord Southhall, who was one of your 
Highnesse's Commissioners for the administration of justice 
in Scotland, having departed this life, and it having pleased 
God now to take away from us the Lord Balchomie, another of 
the said Commissioners, who died this forenoone in the house of 
the Session of the said Commissioners, whereby the number of 
the said Commissioners is become so few that here are but 
foure of them now upon the place, which is the least number 
that can, by their Commissions, act in the Inner House ; and 
the constitution of that Judicature being such, that in an 
Outer House, which is still in use for judging of matters not 
of so great moment or intricacy as that either party concerned 
would insist upon having the judgment of the Inner House 
on them, one of the judges would determine and adjudge in 
many civil causes which did spare much paines to the whole 
judicature in deciding of causes of lesser importance, and with- 
out which proceedings would be too slow. But the death of 
Lord Balchomie rendering now the keeping of the Inner and 
Outer House (which is the whole judicature), together, the 
quorum now left here being barely competent for the Inner 
House, and it being the time of the Sessions, which continue 
but for the months of June and July, the next Session not 
beginning till the 1st of November, and great numbers of 
people being attending the despatch of their causes there de- 
pending, your Highnesse Council have found themselves in a 
strait, because they apprehended that as it is necessary for the 
carrying on of justice to the people, another judge should be 
appointed who is very able in the laws and practice of pro- 
ceedings here to keep the Outer House, whereas the Lord Bal- 
chomie did frequently sit, having been one of the ablest for 
it : so. they would be very unwilling to place any one in such 
a trust without your Highnesse' express order and appoint- 



CROMWELL CONFIRMS HIS APPOINTMENT. 65 

ment, if the administration of justice, which they are by your 
Highnesse appointed to see duly administered, could be other- 
wise effectually proceeded in without intermission ; yet be- 
lieving it to be your Highnesse intention that they should 
supply such a present exigency in a time so pressing, they 
ietJumght and have pitcht upon a person of eminent abilities, 
Mr, James Dalrymple, an advocate of whose qualifications and 
good affections they have ample satisfaction, to be ane of the said 
Commissioners for administration of justice, at the same salary 
which the Lord Balchomy had, being three hundred pounds 
per annum, according to the establishment of the Scotch 
judges, of which choice they humbly crave leave to desire 
your Highnesse approbation." ^ 

Stair was accordingly admitted to the bench on 1st July, 
and his appointment was confirmed by Cromwell on the 26th 
of the same month.^ When afterwards assailed for accepting 
office under the usurper. Stair defended himself, lawyer-like, with 
a distinction which will scarcely satisfy a sensitive conscience, 
though it was adopted in similar circumstances by Sir Matthew 
Hale.® " I was made a judge, supposing I would be as ac- 
ceptable as any, yet I did not embrace it without the approba- 
tion of the most eminent of our ministers who were then alive, 
who did wisely and justly distinguish between the commissions 
granted by usurpers, which did relate only to the people, and 
were no less necessary than if they had prohibited baking or 
brewing but by their warrant, and between those which relate 
to councils for establishing the usurped power or burdening the 
people." His appointment afforded a fair shaft to the satirist, — 

1 Thurloe, State Papers, vi. 372. 

' See also Monk to Thnrloe, 14th July 1657, '* I understand bj yours 
that Mr. Daliym pie's commission will be speedily sent down." — Thnrloe, 
State Papers, vi. 402. 

^ Bobert Burnet of Crimond, father of the Bishop, on the other hand, 
had refused to serve under Cromwell — See Burnet's History ^ i. 137. Brodie, 
the Commissioner to Holland, also declined. 

E 



66 LORD STAIR. 

*' Jingo, the taws ! Presto, begon, a mace ! 
First NoFs just power gave him a Regent's place/* ^ 

which did not require to be pointed with the venom of a 
falsehood, — 

" He has a turning rota yett nnwome 
Can his alloadgeance to the Tender turn ;" 

for he does not appear to have been required to accept the 
Tender, taking only the oath De Fideli Administratiorte Officii,^ 

Stair is said to have hesitated before accepting the office of 
judge, not only because of scruples as to serving under the Pro- 
tector, but also because the moderate stipend of £300 a yea^ 
was less than his private practice at the bar. The Eeports of 
the Decisions of the English Judges, which commence on 23d 
November 1655, show that this practice had become con- 
siderable, although less than that of Gilmour and the younger 
Nicolson. The last case in which he is mentioned as plead- 
ing was on 16th June 1657.' 

It was probably an effect of Stair's intercourse with the 
English judges at the bar and on the bench that his '' Institu- 
tions " in many places exhibit an acquaintance with the Eng- 
lish law which would be creditable to a Scotch lawyer of the 
present day, and must have been rare in the lawyers of his 
own time. His tenure of office at this period, however, was 
very short, for during the two years which intervened between 
Cromwell's death and the Restoration the Courts were shut,* 
and a new Commission, in which Stair was included, issued 
in March 1660, did not take effect, as it was not known in 
whose name to direct their letters, some being for a king, 
others for the keepers of the liberties of England.^ 

1 Maidment's Scotch PasquiUy p. 180. * Porbes's Preface, p. 31. 

- Decisions of the English Judges during the Usurpation. Edinburgh, 
1772. 4 Mackenzie's History, p. 21. 

^ March 1660. "The ConnseU of Estait now sittand in the interyall be- 
twix the twa Parliamentis .... appoyntit the personis foUowing to be 
Judges for administratioun of justice to the pepill in Scotland, in canses 
criminal and civill, to witt, Edward Mojsilie, Henrie Goodzear, 



HIS INTIMACY WITH MONK. 67 

About or shortly before this time Stair built in Edinburgh 
a house situated in a " court " now called General's Entry, 
which may still be seen near, the junction of Potterrow and 
Biisto Street. This became his town residence, and he 
entertained in it General Monk, from whom the Entry 
perhaps derived its nam& It was afterwards inhabited by 
his grandson John, second Earl of Stair, and has acquired a 
poetical association as the lodging of the Clarinda of Burns. 
In Alison Square, a few paces off, Thomas Campbell composed 
the "Pleasures of Hope."^ General's Entry is now one of 
those despised tenements of the old town which will- probably 
soon disappear in the course of its improvement 

Monk is said to have frequently sought the advice of Stair 
during his residence in Scotland. The terms of his letters to 
Cromwell certainly show the confidence he reposed in him 
The day^ before that on which he commenced his march for 
England, the 18th November 1659, they had a meeting, when 
Stair recommended him to call a full and free Parliament.* He 

Crook, junior, Johnne Henlie, Esquyris, for the Englifih natioun ; Sir Johnne 
Wems, Sir James Hope, James Dalrymple, Jphnne Scougal of Humble, Jamca 
Robertoun, and David Falconer, knychtes and esquires, for the Scottis 
natioun. ' The quonim of the saidis judges to be fyre, and that the four 
Inglische judges and four of the Scottis natioun be particularlie assigned to 
go zeirlie in Circuit Courts in Scptland. Bot thir ordoris tuik not effect, 
not knowing in quhois name and authoritie to direct thair varrandis and 
letters ; sum of the pepill being for a king, utheris for the keiparis of the 
liberty of England, as was in use of befoir quhen Oliver and his line 
assumed the power and authoritie to thamselffis, and usurped the Crown." — 
NicoFs Diary, p. 278. 

* Wilson's Memorials of Ediriburgli, ii. 218. Mr. Wilson conjectures with 
some probability that the name of General's Entry may have been given 
from the residence there of the Earl who was made lieutenant-General after 
Malflaquet, but is generally known by his later rank as Field-Marshal Stair. 
He mentions two curious ornaments of the house, and a sun-dial at the south- 
east gable, with the motto " We shall die all," the other a shield, bearing 
the imusnal heraldic device of a monkey, with three stars in chief, and the 
initials J. D. 

* " Le 18 Novembre 1659, il donna I'ordre de marche, partit ce mGme 
jour en avant de son arm^e avec son ^tat major et se rendit & Hadding- 
ton."— Guizot's Mordct p. 93. ^ Forbes's Preface, p. 32. 



68 LORD STAIR 

« 

also urged him to set " the course of justice agoing/' a char- 
acteristic counsel from one whose chief interest in life was the 
just administration of the laws. Monk appears to have com- 
municated to Stair the progress of his march. One letter at 
least, written from Dunstable, was seen by Forbes^ in the 
hands of Sir James Dalrymple of Borthwick, Stair's second son. 
The intimacy of Stair with Monk is a remarkable episode in 
his life, and affords considerable light on a side of his char- 
acter, which must not be overlooked in a fair estimate of it. 
Neither of them was of the rare stuff of which heroes or martyrs 
are made. They were both men of that disposition which is 
called by some cunning or politic, by others cautious and 
prudent. A settled Government appeared to them, at this 
juncture, more important than the form of Gk>vernment, nor 
did they shrink from such personal advantages as fell to their 
share for contributing to its establishment. It was their 
misfortune, as it must sometimes be, of the supporters of 
monarchy, that the personal character of the monarch was 
not such as could command respect. So far from being a 
defender of absolutism. Stair's influence and conduct steadily 
leant to that limited form of monarchy which has been re- 
garded as an axiom of the British Constitution. " As to the 
matter of Civil Government," he writes in a remarkable pas- 
sage of his Apology^ " since I was capable to consider the same, 
I have ever been persuaded that it was both against the 
interest and duty of Kings to use arbitrary government ; that 
both King and subjects had their title and rights by law, and 
that an equal balance of prerogative and liberty' was necessary 
for the happiness of a Commonwealth."* 

^ Forbes'fl Preface, p. 32, — -who says the date of this letter was 27th 
January 16f§. Monk entered London on the 13th Fehmary 1660. M. de 
Bourdeaux to M. de Brienne. — Guizof s Monkj p. 273. 

2 Apology, p. 4. 

^ A Treatise on the Rights of Kings and Suhjects is amongst his lost 
works. See Apology, p. 4. 



VIEWS ON PREROGATIVE AND LIBERTY. 69 

Although in his ^ dedication of the Institutions to Charles 
n., there is some of the flattery of the age, it is more sober than 
that of most of its writers ; his refusal of the Declaration in 
1663, his exile on account of the Test imposed in 1681, and 
the part he took in the Eevolution of 1688, prove that this 
declaration against arbitrary government was sincere. It was 
not wonderful that in the minds of thase who had witnessed 
the troubles of the civil war, and the period which had pre- 
ceded it, there should arise a horror of bloodshed and desire for 
peace. " Victor sine sanguine " was the motto wliich Monk, 
shrewdly conscious of his best title to honour, assumed, and 
Stair was specially solicitous to show, and, it will be presently 
seen, showed successfully, that he discountenanced the severity 
with which the Government of Charles treated his old associates 
of the Covenant. 

Charles and his ministers were not slow in measures of 
retaliation. Within a few months Argyle* was beheaded 
and Guthrie hanged.* Rutherford's Lex Rex was burnt by the 
hangman, both in Edinburgh and St. Andrews. The inscrip- 
tions on the tombs of Alexander Henderson at Edinburgh and 
Geoi*gd GOlespie at Kirkcaldy were defaced. The corpse of 
Montrose was disinterred from the Boroughmuir and reburied 
with great state in St Giles's. Under the shelter of the 
Eescissory Act, by which all the Acts of Parliament since 

^ The practice of flattery in dedications was thus defended by one who 
was certainly as free from it as any English writer : " I do not myself think 
a man should say in a dedication what he could not say in a history. How- 
ever, allowance should be made, for there is a great difference. The known 
style of a dedication is flattery ; it professes to flatter. There is the same 
diflerence between what a man says in a dedication and what he says in a 
history, as between a lawyer pleading a cause and reporting it." — Dr. John- 
son, in Boswell^s Tovr to the Hebrides, p. 353. 

' Aigyle's execution was on 17th May 1661. 

' Guthrie was hanged in June 1661. " We saw Argyle and Guthrie, 
their heads standing on the gates of Tolbooth." — Ray^s liiTierary, 20th 
August 1661. 



70 LORD STAIR. 

1639 were declared null, Charles broke his oath^ and restored 
Episcopacy. Yet the Government took credit, and perhaps, 
considering the times, deserved some, for its clemency. 

Soon after Charles's accession, Stair went to London^ with 
Lord Cassilis, one of his companions in Holland, to pay his 
respects to the King, by whom he was received with favour, 
knighted, and appointed one of the judges of the Court of Ses- 
sion, in the new nomination on 13th February 1661.* The Earl 
of Glencairn was made Chancellor of Scotland, and in his 
absence Sir John Gilmour was appointed to act as President of 
the Court.* Sir George Mackenzie mentions that, "in the 
nomination of the College of Justice, each great man was 
allowed a friend or two, till the list was compleat;" but Stair 
probably owed his place to the personal favour of the King.* 

^ When the Scotch records were returned to Edinburgh after the Restora- 
tion, *'it was suggested to Clarendon that the original Covenant, signed by 
the King, and some other declarations under his hand, were among them, and 
he, apprehending that at some time or other an iU use might be made of 
these, would not suffer them to be shipped till they were visited, nor would 
he take Primrose's promise of searching for them carefully and sending them 
up to him. So he ordered a search to be made. None of the papers he 
looked for were found." — -Bumet*s History of His Oten Timea. Eighty-five 
hogsheads of the Scotch registers were lost on their way to Scotland by the 
shipwreck of the vessel in which they were conveyed. 

> This was in the end of May or beginning of June 1660. Lord Lome 
writes to Lauderdale on 24th May : *' I am now resolved, almost with all 
Scotland, to seek the satisfaction to kiss his Majesties hand. No man in 
this country so old, or sulky, or sullen, or peevish, but is making ready. 
The Earl of Cassilis is on Monday next to be at the first meeting of a shire, 

and it is believed from that he sets forward." — Lauderdale Mss. in 

British Museum, 21. 37. 

' Act. ParL vii 124. He took the oath of allegiance on 5th ApriL — Act. 
Pari. vii. App. 33. 

* lliirteen of the new judges were knighted ; only two, Mr. Robert 
Burnet and Mr. James Robertson, ^'renuncit the order of knighthood." 
*' An these foimamed persones," Nicol observes, " were able judicious men." 
— Nicol's Diary, 366. 

^ ** And I know that the King allowed his friends to accept such Commis- 
sioners as were necessary for preserving his people, and (herefore when ?ie 
was restored I teas one of the senators of the College of Justice in the first 
nomination,^ — Apology, p. 4. 



JUDGE IN NEW NOMINA TION BY CHARLES L 7 1 

In November of the same year, Gilmour having been called to 
London to advise as to the marriage articles between Mon- 
mouth and the Duchess of Buccleuch, Stair was named by the 
Earl of Middleton, the Bang's Commissioner, Vice-President, 
to take the Chair during his absence.^ 

He was also put on the new Commission^ for the Planta- 
tion of Kirks and Teinds, and on that for raising the King's 
Annuity in the shire of Wigton,^ where his wife's estate of 
Carescreoch was situated. Stair rebuilt, about this time, the 
mansion-house on that property, which became his favourite 
residence, retreating to it whenever relieved from the business 
of the Court, and employing himseK actively in the manage- 
ment,* both of that and his paternal Ayrshire estate. This 
combination of the country gentleman and the lawyer waa long 
a distinguishing mark of the Scotch judges,* several of whom 
did much for the improvement of agriculture. Their descend- 
ants still own a considerable portion of the soil of Scotland. 

1 Forbes's Preface, p. 32. 

s 4tli March 1661 ; Act. Pari. vii. 48. 

« 29th March 1661 ; Act Pari. viL 92. On 5th July 1661 ; (Act. Pari, 
vii 295.) He was also appointed one of the Commissioners for ascertaining 
the losses and annual rents of James Duke of Hamilton and others. 

^ Statistical Account o/ScoUandi Wigtonshire, p. 70. 

^ Lord Eames was the most notable of these, but he is by no means ii 
solitary example. 



CHAPTER V. 
1661-1671. 

Stiir Judge of Court of Session — Grovemment of Scotland under Charles n. — The Royal 
Prerogative restored — First the Earl of Middleton, and afterwards the Earl of 
Lauderdale, at the head of Scotch affairs— Stair deprived of office for refusing the 
Declaration, but restored by Charles— Visit to Paris — Created a Baronet — 
Tragedy of his daughter, Janet Dalrymple, the Bride of Lammermoor — Different 
and inconsistent versions of the story — Other superstitious stories about mem- 
bers of Stair's family — One of the Scotch Commissioners to treat of the Union- 
Failure of this project— On the resignation of Sir John Gilmour, appointed 
President of the Court of Session— Sir Qeorge Mackenzie's character of him — 
Made a member of the Privy Council of Scotland. 

The next ten years of the life of Stair, although marked by 
a domestic tragedy, were not memorable as regards public 
affairs. Scotland had now resumed a secondary position, and 
a Judge, though not entirely removed as now from politics, 
was chiefly occupied with the discharge of the duties of his 
ofl&ca The joy with which the Scotch nation hailed the Ee- 
storation, its hopes of freedom and independent government, 
were quickly dispelled. If the rule of Cromwell^ had been 
galling to the feelings of a proud people, and in some respects 

^ CromweU himself had seen the position with a clear eye. He thus de- 
scribes the condition of the Scotch : <' In good earnest I do think the Scots 
nation have been under as great a suffering in point of livelihood and subsist- 
ence outwardly as any people I have yet nanied to you. I do think truly 
they are a very ruined nation. And yet in a way (I have spoken with some 
gentlemen come from thence) hopeful enough ; it hath pleased God to give 
that plentiful encouragement to the meaner sort in Scotland, — I must say, if 
it please Ood, to encourage the meaner sort The meaner sort live cte toeU 
and are as likely to come into aa thriving a cotidiUon under your government as 
when ihey were under their own great Lords who made them work for <A«ir 
Uving no better than the peasants in France,^^ — CromweU*s Speech to the Eng- 
lish Parliament, 25th January 1658. 



ROYAL PREROGATIVE RESTORER 73 

in fact severe, that of their own impoverished and intriguing 
statesmen, with first Middleton, and afterwards Lauderdale, 
at their head, was much more so. 

The first Session of the first Parliament of Charles n. was 
chiefly occupied in restoring the Eoyal Prerogative in all the 
plenitude of the times of his father and grandfather. An oath 
was imposed on Members of Parliament, by which they 
acknowledged that the King was supreme governor of the 
kingdom over all persons and in all causes,^ implying his 
supremacy in ecclesiastical as well as civil matters. The 
appointment of OflScers of State,^ the calling, holding, pro- 
roguing, and dissolving Parliaments,^ and the right to make peace 
and war,* were declared to belong to the Eoyal Prerogative. 
All Leagues and Conventions without the King's authority 
were pronounced nulL*^ The Convention of 1648® and the 
•Parliament of 1649 were condemned, and the Covenant 
asserted to be not binding. All persons in office were to take 
the oath of allegiance and in addition an oath acknowledging 
the Royal Prerogative.'^ The famous Rescissory Act® annulled 
the Acts of all the Parliaments since 1640, but judicial pro- 
ceedings during the Usurpation were saved unless impugned 
within a year.* Church government by presbyteries and synods 
was allowed in the meantime, but warned of its impending 

1 1661, c. 2 ; Act Pari viL 7. " 1661, c. 2 ; Act. ParL vii. 10. 

» 1661, c 3 ; Act Pari. vii. 10. * 1661, c. 6 ; Act. Pari. vu. 13. 

* 1661, c. 4 ; Act. ParL vii. 12. « 1661, c. 6 ; Act. ParL viL 16. 

7 1661, c. 9 ; Act Pari. vii. 30. 

< 1661, c. 15 ; Act. Pari, vii 86. The preamble of this Act Bhoald be 
read as the best exposition of the abject spirit of the time of the BestoratioD. 
Its enacting danse is : " Therefore the King's Majesty and Estates of Parlia- 
ment do hereby rescind and annnU the pretended Parliaments kept in. the 
year one thousand six hundred and forty, one thousand six hundred and 
forty-one, one thousand six hundred and forty-four, one thousand six hun- 
dred and forty-five, one thousand six hundred and forty-six, one thousand 
six hundred and forty-seven, and one thousand six hundred and forty-eight, 
and all acts and deeds past and done in them, and declares the same to be 
henceforth void and nuU." » 1661, c. 12 ; Act. Pari. vii. 62. 



74 LORD STAIR. 

fate by tho same Act ^ which declared that his Majesty would 
make it his care to settle and secure the Church in such a 
form as should be most suitable to God's Word, monarchical 
government, and the public peace.^ There could be little doubt 
what this meant in the mouth of the descendant of the author 
of the famous saying, '* No King no Bishop/' and who himself 
declared that Presbyterianism was not a religion for a gentle- 
man. A solemn anniversary was ordered yearly on the 29th of 
May, the birthday of Charles ^ and the day of his Bestoration. 

In August of this year, Lauderdale, who was Secretary of 
State for Scotland in London, an office which gave him the 
King^s ear,^ wrote at the conmiand of Chtucles to the Scotch 
Privy Council stating the royal intention to restore Episcopacy, 
and accordingly by the first Act of the Parliament of 1662 
the former government of the Church by archbishops and 
bishops was re-established.* The Covenant and Solemn 
League and Covenant were declared imlawful oaths, and all 
persons speaking or publishing against the King's supremacy 
in matters ecclesiastical incapacitated from public office.® A 
Declaration that it was tmlawful for subjects to enter into 
Leagues and Covenants was imposed not merely on persons in 
office, but also upon advocates — a measure which even Sir 
George Mackenzie, a strong upholder of the Eoyal Prerogative, 
disapproved, remarking that advocates, not being persons in 
public trust, by the same rule the declaration should have been 
forced upon all the nation.^ 

During these two years the government in Scotland had 
been in the hands of the Earl of Middleton, a soldier of for- 

1 1661, c. 16 ; Act. ParL vii. 87. « 1661, c. 16 ; Act ParL viL 88. 

> Charles was bom 29th May 1630, and entered London 29th May 1660, 
but the Acts of his reign are dated from the day of his father's death. 

* ** That my Lord Landerdale is never from the King*s eare nor council, 
and that he is a most cunning fellow.*' — Pepys's Diary, 2d March 1663-4. 

^ 1662, c. 1 ; Act. ParL yii. 372 : Act for the restitution and re-establish- 
ment of the antient Government of the Church by Archbishops and Bishops. 

• 1662, c. 2 ; Act. ParL vii 377. ^ Mackenzie's History, p. 65. 



LA UDERDALE SUCCEEDS MIDDLETOF. 75 

tune^ who had first distinguished himself in the service of 
the English Parliament^ but had afterwards done good service 
both for Charles i. and Charles n., and shared the exUe of the 
latter. At the Eestoration he was created Earl,^ made Com- 
mander-in-Chief in Scotland, Governor of Edinburgh Castle, 
and represented the King as Commissioner in the Parliaments 
of 1661 and 1662. A devotee of arbitrary government without 
political tact, he forgot this meant the will of the King and not 
his own, and by the rash attempt to incapacitate his rival 
Lauderdale in the Act of Billeting, under which Lauderdale, 
the Earl of Crawford, and Sir Eobert Murray were named by 
secret voting amongst the twelve persons excluded from the 
Act of Indemnity, procured his own falL* 

Charles as in several other cases held an audience,^ and 
after a debate in which Middleton and Lauderdale incriminated 
each other, decided as a personal monarch who should rule 
Scotland. Middleton was dismissed from all his offices, and 
the dissipated Earl of Bothes ^ sent as Commissioner in his 
room,^ but the real power was vested in Lauderdale^ who 
remained in London as Secretary of State for Scotland. This 

^ " A man of moderate andentanding, not covetous, but a soldier of for- 
tune and poor." — Pepys's Diaryy 16th April 1667. 

^ Crawford's Peerage, 332 et seq, 

' The Act of Indemnity is 1662, c. 10 ; but the twelve persons were 
excepted from it by two separate Acts which were entitled the Act for 
excepting of Persons from Public Trust, and the Act for Voting the same by 
Billets, both of which were rescinded by the King's command in 1663 ; Act, 
9th September 1663, Act Pari viL 471. 

^ Mackenzie's Higtory, p. 73. Brown, MkceUanea AuUca. 

^ There are some curious letters from him to Lauderdale, defending him- 
self against charges of drunkenness and horse-racing, amongst the Lauder- 
dale MS& * Sir James Turner's MemowB, p. 136. 

' ** That my Lord Lauderdale, being Middleton's enemy and one that 
scorns the Chancellor, even to open affronts before the King, hath got the 
whole power of Scotland into his hand ; whereas the other day he was in a 
fair way to have had his whole estate and honour and life voted away from 
hino." — Conversation of Mr. Alsopp, the King's brewer, with S. Pepys, 
22d February 1663-4. 



76 LORD STAIR 

clever and even learned, but unscrupulous and coarse states- 
man has left the impress of his character on the dismal page 
' of Scotch history which is filled with the suflferings of the 
Covenanters during the next twenty years. Had Charles 
sooner listened to the complaints of his opponents, and dis- 
missed him from the management of Scotch business, the 
fate of the Stuart race might possibly have been averted 
for a time. It required a long course of misgovemment to 
alienate the Scotch people fix)m their hereditary kings.^ By 
an Act* passed on the 7th of August, the Declaration was 
re-enacted in Scotland, and the oath ordered to be imme- 
diately tsiken. All persons in public trust were required to 
declare that they "judged it unlawful to subjects, upon pre- 
tence of reformation or other pretence, to enter into Leagues 
or Covenants, or to take up arms against the King or those 
commissioned by him, and that all the gatherings, convoca- 
tions, petitions, protestations, and erecting and keeping of 
council tables that were used in the beginning and for carry- 
ing on the late troubles, were imlawful and seditious ; and, 
particularly, that the oaths, whereof the one was commonly 
called the National Covenant and the other a Solemn League 
and Covenant, were and are unlawful oaths, and were taken by 
and imposed upon the subjects of this kingdom against its 
fundamental laws and liberties." The King, by a letter on 
19th December 1662, ordered the Lords of Session who^ had 
not yet taken it to do so within a fixed date. 

^ " No part, I believe, of modern history can be compared, for the wicked- 
ness of goyernment, to the Scots administration of this reign, . . . the 
tyranny of Lauderdale far exceeding that of Middleton as his own fell short 
of the Duke of York's."— Hallam's OonstUutional Jlistary, iii 328. ** The 
Parliament of 1661," observes the same writer, p. 327, "influenced by wicked 
statesman-lawyers, left far behind the royalist Commons of London, and 
rescinded as nuU the entire Acts of 1641 on the absurd pretext that the 
late King had passed them through force. The Scots Constitution fell back 
at once to a state little better than despotism." 

* Act Pari. viL 472. 7th August 1663 ; 1663, c 3. 

» Brodie's Diary^ 10th Nov. 1662, «* That Lee, Stair, and Amiston refused 
the Declaration." 



REFUSES DECLARATION AND RESIGNS OFFICE. 17 

Stair and some of his colleagues had refused to take it in 
the previous year. He was at this time absent at the funeral 
of his mother, who had the good fortune to witness his pro- 
sperity and to die before the troubles of his later years. He 
did not take his seat on the bench during the winter session of 
1663, and had been present for the last time at a special meet- 
ing of the Court called during the preceding vacation in Sepr- 
tember, when the Lords gave their consent to the purchase by 
the Magistrates of Edinburgh from Lord Lauderdale of the 
Citadel of Leith, which had been recently erected into a regality 
in his favour; this consent being necessary/as part of the revenues 
of the Court was secured on the money which the Magistrates 
wished to apply for the purchase: On the 5th January 1664, 
the King's letter ordering the declaration to be taken by the 
recusant Lords was read by the Chancellor to the Court, which 
ordered letters to be written to those of their body who still 
held out, Lords Amiston,^ Stair, Bedlay, and Tarbet ; and Lord 
Glencaim as -Chancellor wrote to Stair that if he did not come 
in and take the Declaration before the 19th of January, his 
seat would be declared vacant. He replied in the following 
letter to the Chancellor that his resignation was already in the 

King's hands : — 

" Am, January 15<A, 1664.* 

" My Lord, — ^Tour Lordships of the 5th instant I receaved 
this day shewing that his Majestic, by his letter under his 
royall hand of the 19th December last, had requyred your 
Lordship to appoint a day in which the absent Lords of 
Sessione may either subscrybe the declaration or refuse it, to 

^ Lord Amiston made a reply similar to that of Stair, and was like him 
deposed. Lord Bedlay pleaded ill-health, and was aUowed longer time, but 
died in the spring following. Lord Tarbet urged that he had already taken 
the oath in Parliament, and his coUeagues were apparently willing to accept 
this excuse, but a special letter from the King ordered his deposition for the 
part he had taken in the Act of Billeting, and his place was declared vacant 
1 6th February 1664. — MS. Books of Sederunt, Register House, Edinburgh. 

> MS. Books of Sederunt, 1661-74. 



78 LORD STAIR 

the end his Majestie may take care for supplying the place of 
such as sould refuse, and therefore that your Lordships had 
assigned the 19th of this instant for me to give my ansyre 
thereanent. My Lord, I have alreadye, before the date of his 
Ma^^ letter, sent up to London a resignatione of my place in 
the Sessione in his Majesties royall hand, whereby I hope 
your Lordship and the rest of the Lords will be satisfied that I 
need not come to give any further ansyre to your Lordships 
letter. I sail not cease qll I breath to be faithfull to his Ma^ 
and to doe him all service I can in whatever statione I be in, 
and sail be readie to doe what service I can to your Lordship 
and that honourable House which I soe much love and honour 
as you sail be pleased to command. — My Lord, your Lordships 
most obedient humble Servant, Ja, Dalkymple." 

His place was accordingly declared vacant four days after.^ 
This act showed courage, for he risked by it more than his seat 
on the Bench, but Charles summoned him to London, and 
allowed him to take the declaration with a qualification^ that 
he was content to declare against whatever was opposite to his 
Majesty's right and prerogative, giving him a writing to that 
efiect* 

^ MS. BookB of Sederunt, 19th January 1664, Begister House, Edinburgh. 
This evening, writes William Sharpe to Lauderdale, *' the President calls me, 
and tells me that after consideration had of Stairs letter to the Lords this 
day, they had declared his place Taking.*' — ^Lauderdale Papers, British 
Museum. 

^ **But when the Declaration was enacted by Parliament, required of all 
in public trust, I did rather renounce my place than take it, and did retire 
into the country, where I lived a year privately and quietly ; but without 
any desire and expectation. King Charles caUed me to London, and desired 
me to return to my status in the Session, and when I told him I could not 
sign the Declaration unless it were so explicated and restricted that by the 
general terms expressed in it I did declare against no more than what was 
opposite to his Majesty's right and prerogative, and that I should have 
these terms from his Majesty in writing, which he granted, and I have yet 
to show which the Act of Sederunt at my restitution doth import." — Apology, 
p. 4. 

s In an obscure passage William Sharpe writes to Lauderdale on 16th April 



RESTORED TO OFFICE BY CHARLES. 79 

^Accordingly a royal letter was addressed by the King to 
the Court in the following terms : — 

'' Right trostie and Right well-beloved Cousins and Counsellors, 
Right trustie and well-beloved Counsellors and trustie and well- 
beloved : wee greete you weill. Having heard Sir James Dal- 
lymple of Staires, one of your nomber, clear himself in the matter 
of the declaratione appointed to be taken be all in public trust 
(which he at his return will take), and being well satisfied there- 
with, and with his good affection to our service, and with his great 
abilities to serve in that station. We did not think fit to accept 
of the warrant formerly sent us for demitting his place into our 
hands (of which demission no use has been maid), therefore our 
pleasure is that he, signing the said declaration, doe continue in 
his place as one of the ordinary Lords of Sessione in the same 
manner as formerly, and as if the warrant for his demission had 
never been maid, and so we bid you fareweil. Given at our Court 
of Whythall, the 21st day of Apryll 1664, and pur reign the 16th 
year. By his Ma**«* command, sic subscribitur Lauderdail." 

In compliance with this letter, he was readmitted, and the 
Act of 19th January declaring his place vacant rescinded 
Immediately after receiving the King's letter he made a short 
tour to France* with his eldest son, the Master of Stair, and 

1664 : — *' Mr. Hastie^his cousin, here says, that my Master^bis little elder" (this 
is said to refer to William, Master of Cranfnrd, afterwards eighteenth Earl), 
•* has writ here of late in French ih4it Stair, who is now with my MaMer, was 
coiled from this upon the express condition that neither Sheldon nor the Black 
Lawyer (the Chancellor, Lord Glencaim, or Sir John Gilmour, President), 
should know qf it. So that some think my Master intends to bring ?Um qff 
wHHhovA doing what others have done, but neither of the two . . . will be well 
pleased ^ he be not neighbourWse,''* — Lauderdale Papers, British Museum, 
37. 116. 

<< We are told now," writes Archbishop Sharpe to Lauderdale on 21st 
April, ** (haJt Stair is sent for to be dispensed with as to his taking the Declara- 
tion, and that the eyes of our adyersaries are much upon him, but I think 
he is more wise than to put himself in a singular condition." — Lauderdale 
Papers, British Museum. 

^ From a letter by Stair to the Earl of Argyle, written from Paris, which 
belonged to Mr. Thomas Thomson, and was seen by Dr. Lring (see his Life 
of Stair, p. 157), it appears Stair left London on 22d, and arrived in Paris 
29th April 1664. This letter, it is to be hoped, is still extant, but though I 
have made inquiry I have not discovered it. 



80 LORD STAIR 

visited Paris. The satirist alludes to this in some obscure 

lines — 

" He sware and O rare keept three 
Kingdoms quat {i.e., quitted) 
For France two months before he 
Would do that," 

which are explained by their Jacobite annotator Eobert 
Mylne, " that he had sworn that he would rather goe to France 
than take the Declaration."^ It seems more probable that he 
was anxious to see the magnificent capital and brilliant Court 
of Louis XIV., who then attracted the admiration of Europe, and 
gratified the pride of France, but is now seen to have sown the 
seeds of its decay. He resumed his seat^ on his return on 9th 
June 1664. A week before, he had received a further mtuck of 
the royal favour, being created a baronet. 

During the next five years there is nothing of moment to 
relate in the life of Stair. 

The few memorable events in Scotch history during this 
period were the institution of the Court of Ecclesiastical Com- 
mission at the instigation of Sharpe, Archbishop of St. Andrews, 
in 1664, who seemed to emulate the fame of the Star Chamber 
and of Laud ; the exaction of severe fines and quarterings in the 
western shires by Sir James Turner, the rising of the Covenanters, 
which was suppressed by the " Muscovite." ' General Dalzell at 
the Pentland Hills, in 1666, the appearance for a brief in- 
terval of a milder administration under the infiuence of Lord 
Tweeddale and Sir Eobert Murray, shown by the trial and dis- 
missal of Turner, the indulgences to the outed ministers, granted 
by Lauderdale, and the accommodation or comprehension, un- 
successfully attempted by the saintly Bishop Leighton.^ In 

^ Maidment'a Scotch Pasquilsy p. 180. 

^ MS. Books of Sedenint, 1661-74, Register Honae, Edinburgh. 

' Dalzell and General Dmmmond, afterwards Lord Strathallan, had been 
recalled from the Rnssian service by Charles. 

* Leighton's attempt at a comprehension came to a point in 1670, but he 
had been preparing the way for it before. " He went round some parts of 
country," writes Burnet, " to the most eminent of the indulged ministers, 



" THE BRIDE OF LAMMERMOOR" 81 

English history these were the anni mirdbUes of the Plague, 
the Dutch war, the Fire of London, and the Triple Alliance. 

Towards the close of 1669, the family of Stair was sad- 
dened by the tragedy which "the Bride of Lammennoor " has 
made familiar to many to whom his name would otherwise be 
unknown. Lord Macaulay has adopted this story in one of 
those brilliant passages which, unfortunately for his future 
fame as an exact historian, will not bear examination. Select- 
ing from every quarter the blackest colours to paint the char- 
acter of Stair, the father of the man destined to be the scape- 
goat of William in. for the massacre of Glencoe, he says, " One of 
his daughters had poniarded^ her bridegroom on her wedding 
night." The suggestion conveyed in this that a daughter oif 

and carried me with him. His buBinees was to persuade them to hearken to 
propositions of peace. He told them some of them would be quickly sent 
for to Edinbuigh, where these would be offered to them in order to the 
making up our differences : all was sincerely meant. They would meet with 
no artifices, no hardships ; and if they received those offers heartily, they 
would be turned into laws, and aU the vacancies in the Church would be 
filled by their brethren. They received those offers with so much indiffer* 
enoe, or rather neglect, that wocQd have cooled any zeal that was less warm 
and less active than that good man's was. They were scarce civil, and did 
not so much as thank him for his tenderness and care. The more artful 
among them, such as Hutcheson, said it was a thing of general concern, and 
they were but single men. Others were more metaphysical, and entertained 
OS with some poor arguings and distinctions. Leighton began to lose heart. 
Yet he resolved to set the negotiation afoot, and carry it as far as he could. 
When Lord Lauderdale came down to hold a Session of Parliament, letters 
were writ to some of the Presbyterian preachers, ordering them to come to 
town. There was a long conference between Leighton and them before the 
Earls of Lauderdale, Bothes, Tweedsle, and Kincardine. Sharp would not be 
present at it, but he ordered Paterson, afterwards Archbishop of Glasgow, to 
hear all, and to bring him an account of what passed." Thb account of the 
conference, and of the subsequent one at Paisley, is very interesting, but too 
long to transcribe here. The result was the rejection of the overtures by the 
Presbyterians, which was to be expected, as Episcopacy was an essential 
part of them. — Bumef s History^ L 296 et aeq, 

^ Macaulay 's ''poniard" is probably borrowed from Scott^s fiction: 
" The fatal weapon was found in the chamber smeared with blood. It was 
the same poniard which Henry should have worn on the wedding day." — 
Bride of LammennooT ; Waverley Novels, Ed. 1830, xiv. p. 355. 

F 



82 LORD STAIR 

Stair murdered her husband is certainly untrue, for Dunbar 
of Baldoon, who is here referred to, and who was married^ to 
Janet Dalrymple on 12th August 1669, died from an accidental 
fall off his horse between Holjrrood House and Leith on 28th 
March 1682.^ What germ of truth there is in the traditions 
which have come down to us chiefly from the fierce antagon- 
ists of the Dalrymples concerning this lady, it is much more 
difi&cult to determine. The Eeverend Robert Law, minister of 
Inchinnan, Stair's old pupil, whose Memorials are a strange 
record of the superstitions of the times, relates amongst his 
many stories of ghosts, witches, and their supernatural doings 
that " The President had a daughter before this time, being 
married, the night she was bride in, was taken from her bride- 
groom and harled through the house [by spirits we are given 
to understand], and soon afterwards died." In this, the earliest 
edition of the story, there is no poniard and no violence used 
by the lady. Mr. Kirkpatrick Sharpe, the Jacobite editor of 
Law's book, gives two versions of the story without stating the 
authority for them, which contradict each other in the material 
point who was the actor in the tragedy. According to the first 
of these, " Lady Stair, who did not approve of her daughter's 
choice of a husband, after a vain opposition, told her, * Weel, 
ye may marry him, but sair shall ye repent it,' and accordingly 
on the bridal evening, after Lady Stair herself had locked the 
door of the chamber where the young couple lay, and carried 
away the key, a precaution usual at that time, in order to 
prevent numberless coarse jokes meditated by the marriage 
guests, most dismal shrieks and groans were heard to issue 
from the bedroom which alarmed every member of the house- 
hold; the key was immediately called for, and it is alleged 

^ *'Napta August 12, Bomum Ducta August 24, Obiit September 12, 
Sepnlta September 30, 1669." Such is the short but perhaps only trust- 
worthy record of this tragedy. 

> *< At the Quarrel Holes, near Edinburgh."— R. Mylne's Note to Pasquil 
on the Stair Family, Maidment's ScoUieh Pcuquils, p. 198. 



CONTRADICTORY VERSIONS OF THE STORY. 83 

Lady Stair reliDqnisIied it with remarkable unwillingness and 
delay. When the door was opened a shocking spectacle pre- 
sented itself. The yonng lady, weltering in her blood, lay 
extended upon the bed, and. her husband, in a state of idiocy, 
was seated in the chimney, glaring with his eyes and laughing 
in a hideous manner."^ 

In this account, it will be noticed, it was Stair's daughter and 
not her husband who suffered the injury on the fatal night, 
which agrees with the fact of her untimely death, little more 
than a fortnight after marriage. The second account re- 
verses the parts, and relates how, " after she retired with the 
bridegroom into the nuptial chamber, the door being locked, 
she attacked him furiously with a knife, and wounded him 
severely, before any one could gain admittanca When the 
door was broken open, the youth was found half dead upon the 
floor, and his wife in a state of the wildest madness, exclaiming 
' Take up your bonnie bridegroom.* It is added that she never 
recovered her senses, and that her husband, who recovered of 
his wounds, would bear no questions on the subject of his 
marriage, taking even a hint of that nature as a mortal affront 
to his honour.* Yet a third tradition has survived in the 
Daliymple family that it was Eutherfard, the disappointed 
suitor, who assaulted Dunbar on the wedding night.^ Nothing 
less than the agency of the archfiend himself would satisfy the 
ribald satire of Sir William Hamilton of Whitelaw, who after- 
wards disgraced the judicial bench, and was the rival of Sir 
Hew Dalrymple for the office of President on the death of Stair.^ 

1 Law's Memariale, p. 226. 

> Sir J. H. Etphiostone's letter to Sir J. Stewart Denham, printed in Bride 
of Lammermoor, Abbotsford Edition. 

^ Hamilton suffered more than he inflicted by satire. In one of the few 
Pasqnils which approach to wit he is thus described : — 
*'01d Nick was in want of a lawyer in hell. 
To preside o'er his Court there of Session, 
So old Whytlaw he took, for he suited him well 
For tyranny, lust, and oppression ; 



84 LORD STAIR 

** Nick did Baldoon's posterior right decide. 
And as first substitute did seize the bride ; 
Whatever he to his mistress did or said, 
He threw the bridegroom from the nuptial bed 
Into the chimney, did so his rival maull 
His bruised bones ne'er were cured but by the fall" 

On the other hand, Andrew Symson, minister of Kirkinner,^ 
the historian of Galloway, describes both bride and bridegroom, 
in verses nearly as bad as Hamilton's satire, as clothed with all 
the virtues : — 

** A virtuous lady, not long since a bride, 
Was to a hopeful plant by marriage tied 
And brought home hither. We did all rejoice 
-Even for her sake. But presently our voice 
Was turned to mourning for that little time 
That she'd enjoy. She waned in her prime, 
For Atropos. with her impartial knife, 
Soon cut her thread and therewithal her life. 
And for the time we may it well remember, 
It being in unfortunate September, 
Where we must leave her till the resurrection. 
Tis then the saints enjoy their full perfection." 

Dunbar was painted in a subsequent elegy as a perfect para- 
gon: — 

" His body, though not very large or tall, 
Was sprightly active, yea, and strong withal ; 
His constitution was, if right I have guessed. 
Blood mixed with choler, said to be the best ; 



'Twixt the Devil and Whytlaw, the poor wretchea damned 
Will be sore put about in that hot land. 
For now the fierce Justice-Clerk's got the command 
They could hardly be worse off in tJcotUnd." — 

Maidment's Scotch PasquUSf p. 262. 
Sir Walter Scott» by an error which deprives his aoeount of all claim to 
accuracy in detail, makes Hamilton, who was only caUed to the Bar in 1664, 
the rival of Stair himself for the office of President, and not of his son Hew. 
— Introduction to Bride of Lammermoart p. 247. 

^ Elegy on the unexpected death of the virtuous lady, Mrs. Janet Dal- 
rymple, Lady Baldoon, younger. — ^Advocates* Library. 



SYMSOirS ELEGIES. 85 

In 'b gesture, converse, speech, discourse, attire, 
He practised that which wise men still admire- 



Commend and recommend. * What 's that V you 1 say. 

'Tis this : He ever choosed the middle way 

'Twixt both the extremes. A'most in everything 

He did the like, 'tis worth our noticing. 

Sparing, yet not a niggard, liberal. 

And yet not lavish nor a prodigal, 

As knowing when to spend and when to spare, 

And that 's a lesson which not many are 

Acquainted with. He bashful was, yet daring 

When he saw cause, and yet therein but sparing ; 

Familiar, yet not common, for he knew 

To condescend and keep his distance too ; 

He used, and that most commonly, to go 

On foot. I wish that he had still done so. 

The affairs of Court were unto him well known. 

And yet meanwhile he slighted not his own ; 

He knew full well how to behave at Court 

And yet but seldom did thereto resort, 

But loved the country life, choosed to inure 

Himself to past'rage and agriculture." ^ 

But enough has been quoted of the minister of Kirkinner's 
panegyric, which seems to have been partly due to Dunbar's 
attending his church when it was deserted by the rest of his 
congregation : — 

" So that my muse 'gainst Priscian avers 
He, only he, were my parishioners. 
Yea, and my only liearers." 

If Symson's sermons were like his poems, attendance on 
them received an appropriate recompence in such an elegy. 

Scott's account of the story in the Introduction to the 
Bride of Lammermoor and in the novel itself is a compound of 
the various traditions, the satire, and the elegies, with some 

^ A FanenJ Elegie, occasioned by the sad and much-lamented death of 
that worthy, respected, and very mnch accomplished gentleman, David Dun- 
bar, younger of Baldone, etc., by Andrew Symson, minister of Kirkinner. — 
Advocates' Library. 



86 LORD STAIR 

additions received orally from members of the Dalrymple 
family.* 

Told by a master of story in a singularly vivid and pic- 
turesque manner, it is not wonderful- that it has made most 
impression on the imagination of posterity. While he dis- 
claims the intention of '* tracing the portrait of the first Lord 
Stair in the tricky and mean-spirited Sir William Ashton,'' and 
pronounces Stair, *' whatever might be his moral qualities, cer- 
tainly one of the first statesmen and lawyers of the age," he 
avows that Lady Ashton may be supposed " to possess some 
resemblance to Dame Margaret Boss." ^ 

Out of this strange medley of the falsehood of superstition, 
the falsehood of satire, the falsehood of flattery, and the more 
honest fiction of the novelist, who shall reconstruct the facts ? 
Leaving the task to some future Browning, of whom the theme 
is not unworthy, all that shall here be said is that the imhappy 
marriage and early death of Janet Dalrymple are ascertained, 
and that some dispute with regard to who should be her hus- 
band is probable.' 

^ " A lady, very nearly connected with the family, told the anthor that 
she had conversed on the subject with one of the brothers of the bride, a 
mere lad at the time, who had ridden before his sister to church. He said 
her hand, which lay on his as she held her arm round his waist, was as cold 
and damp as marble. But» fuU of his new dress and the part he acted in 
the procession, the circumstance, which he long after remembered, with 
bitter sorrow and compunction, made no impression on him at the time.'' — 
Introduction to Bride of Lammermoar, p. 243. I have not discovered Scott's 
source for saying that Lady Stair quoted Numbers xxx. 2-5 to induce her 
daughter to break her troth to Lord Butherfurd, the uncle of Dunbar, with 
whom she is said to have been pre-engaged. 

^ Introduction to Bride qf Lammfrmoor^ p. 254. 

' Murray, Literary History qf OaUouHi^, p. 157, argues that the whole story 
is a fiction, which " originated in superstitious ignorance or the rancour of 
personal and political enmity, and has since been iUiberally perpetuated by 
Episcopal and Jacobite writers." He points out " that some passages in 
Symson's Elegy are inconsistent with it, especially as it says she was brought 
home to Baldoon's and enjoyed the marriage state for .some little time." But 
I am not able to accept this as a complete explanation. 



SUPERSTITIOUS STORIES 87 

The tales of witchcraft connected with the Daliymples 
were not confined to Janet and her mother. 

Another daughter of Stair, who was subject to fits, was 

believed by the superstitious to have an evil spirit, which gave 

her power to leap over high walls, or, as th^ satirist amplifies 

it:— 

" Who without wings can with her rumple flye, 
No midding foull did ever mount so high, 
Can skip o'er mountains, over steeples soare, 
A way to petticoats ne'er known before ; 
Her flights not useless, though she nothing catch, 
She 's good for letters when they need dispatch, 
When doors and windows shut cage her at home 
She *l play the shuttlecock through all the room. 
This high-flown lady never treads a Stair 
To mount her wyse lord's castles in the air." 

This wonderful personage was Sarah Dalrymple, third daughter 
of Stair and wife of Lord Crichton, eldest son of the Earl of 
Dumfries. 

Nor were his male descendants firee from the misfortunes 
supi^sed to attend his family, though Satanic influence seems 
to have been ascribed only to its female members. Besides the 
accidental shooting of his elder brother by his grandson John, 
the future Pield-Marshal Stair, which the satirist Hamilton 
does not scruple to magnify into parricide,^ Burnet, who evi- 
dently had no dislike to repeat the scandal of the time to the 
discredit of Stair, relates that '' his eldest son rode over a 
chUd and dashed out its brains ; and another, being in a fever, 
snatched at somewhat that lay by him and swallowed it down, 
which proved to be cantharides for a viscatory plaster, with 
which he was ulcerated all within, and died in extreme miseiy. 
Another of his sons, in a fit, fell into the fire, which burnt out 
haK his face." These childish stories, for which there may or 

^ ** Stair's neck, mind, wife, sons, grandson, and the rest, 
Are wry, false, witch, peats, parricide, possessed,'' etc 

Motto to Hamilton's lampoon on Stair Family. 



88 LORD STAIR. 

maiy not have been some foundation in fact, when distorted 
into signs of the Divine wrath against the family of Stair, are 
as it were the ^Nemesis of the Greek tragedy stript of all its 
dignity, and clothed in the vulgar garb of Scotch superstition 
of the seventeenth century. It will be necessary to recur to 
them, and to consider some of the other causes which produced 
them in connexion with the character of Lady Stair. 

In August 1670 Stair was appointed by the King one of 
the Commissioners of Scotland, under the authority of an Act 
of Parliament of 30th July 1670,^ to meet Commissioners of 
England and treat concerning a union of the two kingdoms. 

A more intimate union than the personal union of the 
crowns, effected by the accession of James vi. to the throne of 
England in 1603, was no new idea. It had been a favourite 
project of that monarch,* who first suggested the name of Great 
Britain. It had engaged the comprehensive mind of Bacon.' 
It had been in view in all Cromwell's schemes for the govern- 
ment of Scotland. In 1 653 the Protector had summoned Scotch 
Commissioners to London to treat of a union, and for a short 
time it had been almost accomplished by the election of Scotch 
members to sit in the Parliament of England. When after the 
Restoration the form of government was settled, the scheme was 
again renewed, it is said, at the suggestion of Lord Tweeddale,^ 

* Act. Pari. viiL 6. > Burton's HisUyry ofScaOand, vL 192. 
' See his True Ghreatness qf Britain, pablished by Stephens, 1634 ; and his 

Speech of 17th Febraaiy 1606-7 ; Ellis and Spedding's Ed. of Bacon's Works, 
yii 39 ; also his Case of the Post Nati, vii 637» and Preparations for the 
Union of the Laws, vii 727. " Bacon," writes Harrington to Secretary 
Barlow, " is to manage all the affair [i. e. the uniting of the kingdoms^ as 
who can better do these State jobs.'' — Nugoi ArUiqwe, L 353, quoted by 
Burton, tL 203. 

* '* Lord Tweedale was then in London, and he set on foot a proposition 
that came to nothing, but made so much noise, and was of such importance, 
that it deserves to be enlarged on. It was for the union of both kingdoms. 
The king liked it, because he reckoned that at least for his time be should 
be sure of all the members that could be sent up from Scotland. The Duke 
of Buckingham went in easily to a new thing, and Lord-Keeper Bridgman 



A COMMISSIONER FOR THE UNION. 89 

and was Tecoiumended in Lauderdale's speech to the Parlia- 
ment of Scotland in 1669. A joint Commission of English and 
Scotch members was appointed in the following summer, and 
Stair, with the other Scotch Commissioners, having gone to 
London, where the negotiations were tiO be held, on 13th Sep- 
tember kissed the king's hand in the withdrawing-room of 
his bed-chamber, at WhitehalL On the following day the 
Commissioners for both kingdoms met in the Exchequer 
Chamber at Westminster, the Archbishop of Canterbury being 
in the chair, with the Lord-Keeper, Sir Orlando Bridgman, on 
his right, and the Earl of Lauderdale on his left hand ; and the 
Commissions were read, the Scotch in Latin, conform to the 
Scotch custom, the English in their own tongue. 

The heads for discussion proposed by the king were — 

1. The preserving to either kingdom their laws, civil and 
ecclesiastic, entire. 

2. The uniting inseparably of the two kingdoms into one 
monarchy, under his Majesty, his heirs and successors. 

3. The reducing of both Parliaments to one. 

4. The stating of all privileges of trade and other advantages. 

5. The securing of the conditions of the union. 

There were many private meetings of the Scotch Commis- 
sioners at the lodgings of the Earl of Bothes and the Earl of 
Lauderdale. One party, led by Sir John Nisbet, contended 
there should be no union, because the second and third articles 
were destructive of the fundamental government of Scotland, 
— tending to take away the Parliament of that country, 
which was beyond the power of the Commissioners.^ Lauder- 
dale and Stair, on the other hand, strongly advocated the 
scheme for union. 

A debate arose on the word ''successors" in the second 

was much for it. The Lord Lauderdale pressed it yehemently. It made it 
necessary to hold a Parliament in Scotland, where he intended to be the 
King's Commissioner." — ^Burnet's History^ i 279, 280. 
^ Mackenzie's History of ScoUand^ p. 199. 



.90 LORD STAIR 

article, both as ambiguous in itself, and because by the law of 
England any usurper coming to the Grown was the King's 
successor, and in the end that drticle was carried with the 
omission of these words. The point was again raised at a 
meeting of the Joint-Commission, and the article at last voted 
in the form " that the union was to be in the person of the 
King and his heirs and the posterity of King James/' 

The first article as to the preservation of the separate laws 
of the two kingdoms was next taken up,^ and the Scotch 
Commissioners appointed Stair, the Lord Clerk Segister, the 
Lord Advocate, Lord Newbyth, and Sir Bobert Sinclair, Dean 
of the Faculty of Advocates, to consider it 

When the Joint-Commission met on the following day, the 
report prepared by this Committee was read, and the question 
of appeals from the Court of Session to Parliament was started. 
It was objected by the English Commissioners as inconsistent, 
''that one part of the monarchy should be liable to appeal 
before Parliament, and the other not liable ; the Scottis alleg- 
ing that their decreets and sentences in civUibibs were not at all 
questionable by their law by the Parliament of Scotland." 
There followed several adjournments, during which the Scotch 
Commissioners considered the question of appeals, and finally 
determined '* that there could be no appeals from the Council 
and Session to the Parliament of GreatBritain.'' When the Joint- 
Commission again met, and before this point had been settled, 
a more formidable difficulty arose, the Scotch Commissioners 
insisting that in the united Parliament of Great Britain the 
existing number of members of the Scotch Parliament' should 

^ 27th September, at Lord Lauderdale's ; Mackenzie, History^ p. 203. 

' The question of the number of members to be sent by Scotland to the 
Parliament of the United Kingdom had been a rock on which former projects 
of union had struck ; see the remarkable speech of Sir Heniy Vane in the Par- 
liament of Richard Cromwell, where he gives an account of what had been 
done by the Commission sent by Oliver Cromwell to treat with the Scotch, 
in which he stated *' that the Act of Union, in so far as related to representa- 
tion, had never been duly perfected." — Forstei^s Life qf Vane, p. 141. 



APPOINTED PRESIDENT OF COURT OF SESSION. 91 

be preseived. To this the English Coxmnissioners refused their 
assent ; and finally, the Earl of Lauderdale having referred the 
matter to the King, Charles, on 14ih November 1670, " told the 
Commissioners that in regard of other weighty affairs he had 
upon him, he thought it not feasible at the time to bring that 
treaty to a conclusion, but that he would take another time to it'' 

The negotiations came therefore to an end, and "that grand 
design," says Sir George Mackenzie, " which had so long exer- 
cised the thoughts and entertained the expectations of two 
kingdoms . . . stopped rather to the wonder than dissatis£Eu>tion 
of both nations,"^ 

Stair was not himself destined to live to see the accomplish- 
ment of the union of the two countries, but his son, the Master 
of Stair, was to be a main instrument in carrying the Act of 
Union through the Parliament of Scotland — ^a measure which 
was imperatively required for the further progress of both 
nations. The share which the Dcdiymples took in advocating 
it was, however, undoubtedly one cause of their subsequent 
unpopularity in Scotland. 

On 2 2d December 1670, Sir John Gilmour of CraigmiUar 
resigned the office of President of the Court of Session. 

The ordinary course of promotion pointed out Sir John 
Nisbet of Dirleton, then Lord Advocate, as his successor ; but 
he declined it, and Stair was appointed. The royal letter,* 

^ Mackenzie, p. 211. 

* ** Idth January 1671. The quhilk day the Erie of Bothes, Lord Chan- 
cellor, did produce ane letter superscrybed by his Ma^ and directed to the 
Lord Chancellor, and the Senators of the College of Justice, whereof the 
tenor foUows: — 'Charles B. Right trustie and well-beloved Cousins and 
Counsellors, Right trustie and well-beloved Counsellors, and trustie and 
well-beloved, we greet you weilL Whereas we granted comnussion for 
filling our College of Justice, upon the ISth day of February, in the 13th 
year of our reigne. And by it we did appoint Sir John Gilmour to be con- 
stant President, wherein he has served us faithfully, and whereas, by reason 
of his infirmitie and weakness, he has humbly and freely resigned his place 
and charge of President into our hands, to be disposed of as we shall think 
•fitt, and that by a demission signed by him the 22d day of December 1670, 



92 • LORD STAIR 

dated 7tli January 1671, was read in open Court, having been 
produced by the Lord Chancellor Eothes on the 13th, when 
Stair took the oath and his seat. He owed his appointment, 
according to Mackenzie, to Lauderdale, and this is probable, for 
that nobleman then dispensed all Scotch patronage. 

In connexion with it the same writer gives this estimate 
of the character of the new President, which is valuable from 
the many opportunities he had of observing Stair, from whom 
he differed on many points, and must have watched with that 
scrutiny which, members of the same profession are apt to apply 
to their brethren : — " And really Stair was a gentleman of an 
equal wit and universal learning, but most remarkable from 
being so free from passion that most men thought this equality 
of spirit a mere hypocrisy in hiuL This meekness fitted him 
extremely to be a president, for he thereby received calmly all 
men's information, and by it he was capable to hear without 
disorder or confusion what the advocates represented ; but that 
which I admired most in him was that in ten years' intimacy 
I never heard him speak unkindly of those who had injured 
him."^ 

Stair was at the same time nominated a member of the 
Privy Council, as was usual in the case of the President of the 
Court of Session, and took his seat in that body on 26th 
January 1671.' 

therefore, we being confident of the ability, fidelity, and affection to onr 
service of Sir James Dalrymple of Stair, doe nominat and appoint him to be 
constant President of the College of Justice in absence of our Chancellor, re- 
quyring heirby you as ChanceUor to take his oath, and that he be admitted 
in the usuall form, and so we bid you heartily fareweiU. Given at our 
Court at WhjrthaU, the 7th day of January 1671. In the 22d year of our 
reign. Sic subscribitur by his Ma^** command. Laudebdaill." 

^ Mackenzie, History, p. 214. 

' 26th January 1671. — " The said day, Sir James Dalrymple having, in 
presence of his Majesty's Privy Council, taken the oath of alledgeance and of 
a Secret Councillor, and signed the declaration anent the Covenant, was 
admitted and received a member of Councell, conform to his Majestys letter 
foresaid." — MS. Privy Council Records, Register House, Edinburgh. 



CHAPTEE VI. 
1671-1676. 

stair President of the Conrt of Session for the first time — A Member of Commission 
for the Regalation of the Judicatories— Its interim Report in 1670— Secession of 
the Advocates on account of limitation of their fees—Act of Regulations 1672— 
Stair Member of Parliament for ^ire of Wigton and one of Committee of the 
Articles— Legislation of this year — ^Act against Conventicles — Powers of Privy 
Council increased — ^Acts relating to Private Law — Inventories of Minors* Estates 
—Summonses— Registration of Deeds— Privilege of Royal Burghs— The Ann- 
Special Abjudications — ^Debate before Lauderdale on proposal to abolish Summer 
Session of the Court— Again Member for Wigtonshire in Parliament of 1673 — 
Incident of the Petition presented by the Women in the Parliament Close — 
Secession of the Advocates on the question of Appeal to Parliament from Court 
of Session — Conduct of the leading Advocates and of Stair on this occasion— The 
three leaders of the Bar at this period, Sir George Lockhart, Sir John Lauder, 
Sir George Mackenzie. 

Already, when one of the ordinaiy judges, Stair had given 
proof of his desire for an equal administration of justice by 
calling all causes in the regular order of their enrolment.^ The 
arbitrary power exercised by the judges of following this or 
not as they pleased had been shamefully abused to favour their 
Mends, both litigants and advocates. He had thus acquired 
the greatest character for despatch and justice of any man upon 
the bench.* 

^ Forbes's Preface, p. 31. 

' *< And aU along, when Lord Stair was a single Lord of Session, and 
sitting by turns on the Bench in the Outer House, where most of the cases 
and processes are heard and discnssed in the first instance by a single Lord, 
and where the judges, as to their parts, judgment, justice, or injustice, are 
mostly known, having none other of the Lords* votes to interfere with their 
judgment, he had the greatest character of dispatch and justice of any man that 
ever sal upon that Bench ; aU men being desirous to have CA«tr cases brought and 
tried btfore Aim."— Somers Tracts, Scotfs Ed., xL 550. 



94 LORD STAIR 

The complaints with regard to this and other irregularities 
in the procedure of the Court were so loud and well-founded, 
that the King had, on 21st September 1669, nominated a Com- 
mission,^ of which Stair was a member, to consider the whole 
matter of the Begulations of the three Supreme Courts, which 
then existed in Scotland — the Session, Justiciary, and Ex- 
chequer. The Commissioners reported, in March 1670, certain 
rules which they recommended for adoption, without prejudice 
to what, upon further consideration, they should offer as a full 
settlement; and the King, on the 4th June, ratified theit 
report,' and ordered the rules to be observed, and the advo- 
cates to swear to them. Amongst the rules was one imposing 
a limit on advocates' fees, which created the greatest dissatis- 
faction amongst that body. They refused to swear to the Re- 
gulations, and, as they had done in the case of the tender, 
tried to carry their point by a strike. " They withdrew for 
two whole months, viz., from 10th of November tiU January, 
having just represented to the Lords, in a large speech, that 
these Begulations were impracticable, and that it was impos- 
sible to observe them without the inevitable hazard of per- 
jury." * like many other strikes, this one failed through want 
of union. The Dean of Faculty, Sinclair, on his return from 
London, where he had been engaged in the negotiations as 
to the Treaty of Union, took the oath ; a few other advocates 
followed his example ; and the majority, who had themselves, 
as usually happens in small as well as great revolutions, divided 
into two parties — a more and less violent one — were compelled 
to give in. 

Stair had opposed this regulation, and had even prophesied 
to the Commission that the article concerning the lawyers' fees 
would make all the others ineffectual For his services to the 

^ Ingt. iv. 2. 6. — ^Forbes's Preface, p. 33. 

* See Act. ParL viii. 80 ; 1672, a 16. Artidea for Regulating of the 
Jadicatories, aet down by the Commiflaioners thereto, authorized by his 
Majesty under the Great Seal Edinburgh, 1670.— -Adyocates' Library 
Pamphlets, 2. 5. 19. ^ Mackenzie's History, p. 216. 



ACT REGULATING THE JUDICATORIES. 95 

Faculty in this matter, and for preventing the distinction be- 
tween Inner and Outer House advocates, which had prevailed 
in 1587 and 1604, fix)m being re-introduced, he was publicly 
thanked by the Faculty.^ His prophecy was at least partially 
fulfilled in a way very discreditable to the advocates, who, 
Mackenzie relates, in order " to render the articles wherein 
themselves were concerned ridiculous, did exclaim against the 
whole ; and by this practice made the greatest part of them 
burdens, and unpleasant both to the people and to the Lords 
themselves, and after this that harmony, which used to be 
betwixt Lords and advocates, was here broke oflE" * The Com- 
mission, however, persevered in its reforms, and, after holding 
many more sittings, finally reported, in 1672, a series of revised 
articles, which were embodied by Parliament in the Act con- 
cerning the Begulation of the Judicatories, passed on the 30th 
of August of that year. This Act presents an instructive pic- 
ture of the evils in the procedure of the Courts it was diiected 
to remedy. Some of its provisions, and in particular those 
relating to fees, were either evaded or never enforced ; others 
have long since gone into desuetude ; but several still remain 
an integral and important part of the law which regulates the 
procedure of the Courts of Session and Justiciary. 

The first division of the Eegulations, which relates to the 
Court of Session, enacted that books should be kept for the 
enrolment of processes, which were to be marked of the dates 
when they were returned by the defenders' advocates, who 

^ Forbes's Preface, 7 and 33. 

^ '' The greatest difficulty we have," writes Rothes to Lauderdale, on 
17th February 167 1» *' is to order the fees of the advocates. Many of the 
CommissioDers have been advocates themselves, or their sons are, yet they 
carry pretty fair, for the point is pressed to purpose ; and if you hear not toe 
order them and ^ writen^ you may conclude ihcU all we have done is not worth 
two pears {f pence) to the poor hardsaed coumiry/* — ^Lauderdale Papers, Edin- 
burgh College Library. Bothes appears to have had a special ill-wiU to 
lawyers. *'The Chancellor,'' says Mackenzie, "dining at Blackbarony's 
house, did express his dissatisfaction with the Advocate and Register for 
walking a-f oot in the streets, having so considerable an allowance ; calling 
them ' damned Lawyers.'" — History, pc 213. 



96 LORD STAIR. 

were allowed six days to see them, and that all causes should 
be called in the order of their enrolment. Careful provisions 
were made for the keeping both of the Inner and Outer House 
EoUs and for the publication of the former each Monday on 
the walls of the Outer House. It was provided that if the 
pursuer did not insist at the calling of a cause, it should be 
deleted from the Roll, and protestation— a fine for not pro- 
ceeding with the case — granted to the defender. The Judges 
were strictly forbidden to alter the order of the Roll, and 
if they did so the advocates were to be entitled to decline 
to plead. The jurisdiction of the Court was excluded, both 
in the first instance and by way of review — (advocation), and 
that of the inferior Courts made exclusive in all causes not 
exceeding the value of 200 merks Scots, not quite £11 sterling,^ 
in order that the Lords of Session might be " in better capacity 
to discuss the processes which come before them, not being 
overburdened with small and inconsiderable causes."* Con- 
signation was introduced in suspensions of decrees in absence 
of the inferior Courts ; suspensions of decrees in foro of the 
Court of Session were prohibited on reasons competent, and 
omitted or repelled ; and a decree in foro, as distinguished from 
a decree in absence of the defender, was defined to be where 
"there is once compearance for any party and defences pro- 
poned,'' although the advocate should afterwards pass from his 
appearance. A record of all such decrees was to be kept. 
Where defences were founded upon writings, these were to be 
produced along with the defences, and the particular clauses 
founded on were to be marked, otherwise no respect was to be 
paid to the allegiances or statements in the pleadings. Sus- 

^ £10, 168. Sd. sterling. The same limit had been previously fixed for 
advocation by 1663, c. 9, Act. Pari. viL 451. The sum was extended to £12 
by 20 Qeo. n. c. 43, and to £25 by 50 Geo. in. e. 112. 

* These were the first enactmeDts exdading the jurisdiction of the 
Supreme Court — a policy which, in the opinipn of many competent judges, 
has since been carried out to an excessive extent ; but as regards small-debt 
causes its wisdom cannot be doubted. 



REGULATIONS AS TO COURT OF SESSION. 97 

penders were to produce all their verifications ^ at the outgiving 
of the suspensions, and at the calling of the case, if not pro- 
duced, decree was to be given against them, but they were 
allowed to be received on payment of a fine of £12 Scots. 

To prevent delay in reductions ^ through ordinary and inci- 
dent diligences and terms for production, there were in future 
to be only two diligences against witnesses, one by homings 
and the other by caption, and no incident diligence against 
havers unless it was craved, when the Acts (i.e. orders of proof) 
were to be allowed ; there was to be only one term of produc- 
tion in single (ie. simple) reductions and two in reductions- 
improbation.' 

The regulations to which the advocates so strenuously ob- 
jected followed. 

Ko more than three * advocates were to be employed in any 
cause for a single party, and only two were to be allowed to 
speak in the Inner House, one after another,^ upon the same 
sida The Chancellor or President was to keep the advocates 
close to the point, and their speeches were limited to half-an- 

^ This pradent provinon is frequently evaded in modem pnctioe. It 
urgently requires to be enforced, sod, perhaps, to have added to it a pro- 
vision requiring affidavits in support of the facts on which suspensions are 
founded, in order to bring this important branch of the law into a satis- 
factory condition. It is matter of everyday observation that to get a sus- 
pension passed or interim interdict granted or refused strong averments 
sometimes suffice. 

' This is the action still in use in Scotland for setting aside deeds on the 
ground of forgery, fraud, incapacity, etc., and its forms were and stiU are 
more cumbrous than those of ordinary actions. 

3 Reductions on the ground of forgery, or those cases in which, by fiction 
of law, forgery must be alleged. 

^ Although this regulation is not enforced, it has been generally followed 
in practice, and there are scarcely ever more than three advocates employed 
in a Court of Session suit» and rarely more than two. In England and 
Ireland, on the contrary, it appears to be not very uncommon to have three 
or more counsel on each side. 

^ This is still the practice in the English but has ceased to be so in the 
Scotch Court, where the advocates on each side are heard alternately. 

G 



98 LORD STAIR. 

hour. Their fees were to be according to the quality ^ of the 
client. The maximum for consultation, pleading, and drawing 
bills upon any interlocutor was fixed for a nobleman at £18, a 
knight or baronet at £15, a gentleman or chief burgess at £12, 
and any other person at £9. For informations after dispute 
(t.e. after the case had been debated), half-fees, and that only 
to one advocate, were allowed.* The parties were to give in a 
declaration, as they should answer to God, that they had not 
given larger fees, tuid every advocate, at his admission, was to 
swear he would not receive larger. A table of fees was also 
enacted for Clerks of Session and their servants, and for the 
Clerk of the Bills and his servants. Certain persons under the 
names of agents, who were ;ieither advocates nor advocates' 
servants, having taken upon them to meddle in processes, 
" who are of no use but burdensome to the lieges," they were 
prohibited from entering the Parliament House.' The Keepers 
of the General Begisters of Homings, Inhibitions, Interdictions, 
Sasines, and Reversions, and of the registers in the several 
shires, were enjoined to be careful in booking these writs, and 

^ The same principle was adopted in the Regulations for Bail under the 
Act 1701, c 6, and is characteristic of an aristocratic state of society. 

^ These Regulations with regard to fees were rescinded in 1681.— Act. 
ParL viii. 363. Fonntainhall, Decisions, i. 153. 

^ The ordinary agents in litigation at this time were the adyocates' clerks 
or the advocates themselves, the Scotch custom having foUowed that of 
France, where no distinction existed between the counsel and the attorney 
or solicitor. The Writers to the Signet and derks of Session, caUed Clerks 
to the Signet, were originally employed in conveyancing business only and 
in drawing certain writs which required to pass the Signet. As business 
increased and litigation became more complex, the preparatory steps of a 
law-suit were undertaken by the writers. In 1754 a new body, the Solici- 
tors before the Supreme Court, were recognised by the Court, who in 1797 
obtained a charter of incorporation, and have since engrossed the greater 
part of purely litigious business owing to their devoting more personal atten- 
tion to it than the writers^ who have found the management of estates and 
conveyancing more lucrative. This division of labour in legal business, 
the result of natural causes, must be admitted to be an argument against 
the union of all branches of the legal profession now frequently advocated ; 
but it is not a conclusive argument. 



REGULATIONS AS TO JUSTICIARY COURT. 99 

to keep exact minute-books of them. The regulations as to the 
Session conclude with a table of fees for Writers to the Signet. 
The second division of the Begulations related to the Court 
of Justiciary. The office of Justice-Deputes was suppressed, 
and five of .the Lords of Session were joined to the Justice- 
General and Justice-Clerk, with equal jurisdiction in all 
criminal causes.^ The names of the assizers or jur^ were to be 
inserted in a roll to be signed by the Justiciary Judges or a 
quorum of them. For the splendour of the Court all the 
Judges were to have red lobes faced with white, and the Jus^ 
tice-General for distinction was to have his lined with ermine. 
Circuits were to be held once a year in the month of April or 
May. After the enclosure of the assize, neither the Clerk of 
Court nor any other person was to be present with the assize.' 
The Chancellor was to mark on the same paper as the verdict 
how each juryman voted, and the paper was to be sealed and 
not opened except by order of the Judga In all criminal causes 
except treason, the defender or his advocate was to be entitled 
to the last speecL' lists of witnesses were to be appended to 

^ As regards the o£Boe of Jostice-Depate, Mackenzie observes : " King 
Charles by Act of Parliament added five of the leamedest of all his Judges 
to his Jnstice-Gtoneral and Justice-Clerk in place of two advocates who were 
generally but young or mean, because they had only fifty pounds salary and 
that seldom paid." — ^Vindication of King Charles n.*s Government, Mac- 
kenzie's WoriSf ii. 347. 

' The regulation on this point is thus expressed : ** That the Clerk of 
the Court nor no other person be present with the assize after they are in- 
closed " — but this is elliptical, for *' neither the Clerk of the Court nor." — See 
Humet, (Mminal Law, IL 16. 3. There had been a similar provision in the 
Criminal Ordinance of James VL, as Hume well styles what are usually 
oited as the Acts 1587, c. 81-91, Act. Pari. iii. 458 ; but this provision had 
not been observed. Mackenzie claims the credit of this regulation. — Works, 
U.B52. 

' This merciful and just provision has not yet been fully adopted by the 
law of England. Prior to 6 and 7 WilL iv. c 1 14, by that law prisoners 
were not allowed the privilege of counsel addressing the juiy on their behalf 
except in cases of treason, in which it had been allowed by 7 WilL in. c. 3. 
And by the existing law, if the prisoner leads evidence, the counsel for the 
Crown has the reply, and the Attorney-General has the right of reply 



100 LORD STAIR 

every criminal libel and summons of exculpation^ by which the 
accused was enabled to cite witnesses, and lists of the assize 
were also to be furnished to the prisoner. 

The last division of the Begulations related to the Court 
of Exchequer, and contained provisions as to the fees of the 
Keeper of the Treasurer's Blister, and the Presenter of Sig- 
natures, and to the .^ues, or Exchequer Accounts of the 
Grown Vassals. The Act concludes with a recommendation to 
the Commissioners to take into consideration the procedure of 
the inferior Courts which they had been prevented from doing 
by the shortness of the time at their disposal, but this part of 
the Commission was never executed. 

On the whole, the Commissioners must be allowed to have 
materially improved the administration both of civH and cri- 
minal justice, and it would be well for similar bodies if they 
could point to equally beneficial results from their labours. 
Whether Stair, however, is entitled to any portion of the credit 
is not certain. According to Mackenzie^ he opposed the Act 
of ratifying the Begulations ; but this may have been because 
he thought the matter should have been left to the care of the 
Court. Although he objected to the Article as to advocates' 
fees, he refers frequently with approval, in his Institutions, to 
other parts of the Begulations. 

In the Parliament of 1672, which had been opened with 
great state by Lauderdale, who came down to Scotland as Com- 
missioner — ^his new wife,^ the proud and avaricious Countess of 
Dysart, attracting much animadversion by her presence and 

' whether the prisoner leads evidence or not, — *' probably a relic," obserres 
Mr. Fitzjames Stephen, " of the old inquisitorial theory of criminal justice, 
under which the prisoner had no counsel, and could not have his witnesses 
sworn." — View qfthe Crimtnal Law, p. 161. 

^ Mackenzie, History, p. 234. 

' This lady, Elizabeth Murray, daughter of William Murray, son of the 
minister of Dysart, the whipping boy of Charles i., was lashed for her own 
sins by the satirists of the time, with a severity which appears to hove been 
deserved, but there is probably no truth in the insinuation that she had been 



SCOTCH LEGISLATION IN 1672. 101 

ostentation — Stair sat as Member for the shire of Wigton, and 
there being several vacancies in the Committee of the Articles, 
he was nominated by the Commissioner, along with Sir James 
Foulis, one of his colleagues on the Bench, and Sir William 
Lockhart, to supply those in the representation of the third 
estate.^ The subservient Parliament preserved a shadow of its 
former right of election of the Lords of the Articles by recom- 
mending Lauderdale to nominate the persons to fill the vacan- 
cies, leaving the nomination to his own choice.' 

This was an important year in Scotch legislation, in which 
Stair, as one of the Committee of the Articles, necessarily took 
an important part. Lauderdale was now preparing to carry into 
efiect his scheme of governing Scotland without a Parliament, 
" by the good old form of government by his Majesty's Privy 
Council"' Li order to this end it was expedient that the 

Cromweirs miatress. She was Countess of Dysart in her own right, her 
father having been raised to the peerage by Charles L under that title. — 
See Satyre on Ihichess of Lauderdale, Maidment's ScoUUh PasquUa, p. 241. 
'* Methinks this poor land hath been troubled too long 
With Hatton and Dysart and old lidington. 



While justice provokes me in rhyme to express 
The truth which I know of my bonny old Besse : — 
She is Besse of my hearty fhe was Besse of old Nol^ 
She was ouce Fleetwood's Bessie, and she *s now of Athole. 
She's Bessie of Church, and Bessie of State, 
She plots with her tail and her lord with his pate ; 
With a head on one side and a hand lifted hie 
She kills us with frowning and makes us to die." 
«< The Duchess of Lauderdale, not contented with the great appointments 
they had, set herself, by all possible methods, to raise money. They lived at 
a vast expense, and everything was set to sale. She carried all things with a 
haughtiness that could not have been easily borne from a queen. She talked 
of aU people with an unguarded freedom, and grew to be universally hated." 
Burnet's tiisU>ry of His (hen Times, i. 339. 
^ Act ParL viii p. 57. 

* ** The Estates of Parliament, according to the former president, recom- 
mended to his Majesty's Commissioners to nominate the persons to fiU these 
vacancies." — Act ParL viiL p. 57. 

s Lauderdale to Sir B. Moray. Lavderdale Papers quoted by Burton, vii 



102 LORD STAIR. 

Councirs power and jurisdiction should receive the colour of 
statutory legality. 

Accordingly, the Acts anent unlawful Ordinations and Con- 
venticles, and the keeping of the King's Bestoration-day, gave 
large powers of inflicting penalties to the CounciL The Conven- 
ticle Act^ renewed the Acts of 1670, and, with an appearance 
of moderation, declared : " Since there might be some ques- 
tion concerning the meaning and intent of the word ' pray,' it 
was not intended to prohibit praying in feimilies by the persons 
of the families and such as shall be present, not exceeding the 
number of four persons besides the family, but the outed min- 
isters were not to have liberty to pray in any families except 
in the families where they were allowed to preach, and the 
magistrates in shires and burghs were ordered to be careful to 
put the Acts in due execution against keepers of Conventicles 
and withdrawers from public worship, and to return an account 
of their proceedings to the Council yearly." 

It is possible that Stair used his influence to introduce 
this allowance of &mily prayers — a practice he himself, as we 
shall afterwards see, regularly observed, and which may be 
almost characterized as a national habit of the Scotch people. 
He certainly promoted the indulgences^ granted by Lauder- 

p. 465. — I am indebted to Mr. D. Douglas, Publisher, Edinburgh, for an 
opportunity of perusing a transcript of these Papers, which was made from 
the originals in the British Museum by Mr. Vere Irving. They are of much 
interest, as showing the spirit of the times. Another portion of these Papers 
in the Edinburgh College libraiy I had also an opportunity of consulting, 
but a third in the possession of the Lauderdale family I have not seen. Those 
I have read contain much less information than was to be expected with 
regard to Stair. 

^ Mackenzie, in a sentence which indicates that the name of the bloody 
advocate was not so undeserved as his modem panegyrists would have us 
believe, observes, " The Parliament did, according to its ordinary method, 
begin with Javfs m favour of the Ckureh, making field Conventielee death,** — JUb" 
tory, p. 220. 

^ Eirkton gives an account of a conference which he and Mr. Gabriel 
Cuningbame had with Stair on 20th August 1672, relative to the second 
indulgence. — Kirkton*s HieUny, 330. 



SCOTCH LEGISLATION IN PRIVATE LAW. 103 

dale to the outed ministers in 1669 and 1672. Kirkton calls 
him the ** great confident " of the Presbyterian ministers in the 
Privy Council, and Sir George Mackenzie ^ represents him as 
being always on the side of the fenatics. We shall presently 
find that he did what he could to protest against the severer 
measures of that body, but it would have been better for his 
fame had he never sat on the board, which, for the next nine 
years, misgoverned Scotland. He appears himself to have 
been conscious of this, for he asserted ** that no judge shoidd 
be either member of Council or Exchequer, for these courts did 
learn men to be less exact justiciars than was reqtdsite." * 
It was the same feeling that induced him to decline to have 
anything to do with the administration of criminal justice. 
" I did never," he says in Ins Apology, " meddle in any criminal 
Court, nor was I ever judge, pleader, juror, or witness therein." 
The Acts of the Parliament of 1672 relating to private law 
. were more creditable than those which dealt with ecclesiastical 
affairs. Besides the Act concerning the Begulation of the 
Judicatories, of which mention has akeady been made, the 
interests of minors and persons of defective capacity were 
protected by the wise Statute, which requires inventories of 
their property to be made at the sight of the next of kin, or, if 
they are absent, of the judge.' The great delay, which was 
the consequence of requiring letters and Acts of Continuation 
of Processes, followed by second Summonses, was remedied 
by a provision, that all Summonses which were in use to be 
continued were to contain two separate warrants for citation 
at two distinct diets.^ 

1 Mackenzie's History, p. .321. See also, as to Stair's dealings with the 
Presbyterians, Bnrnet*s Bietory of His Own Times, L 369. 

2 Mackenzie's History, p. 271. ' 1672, c. 2 ; Act ParL nii. p. 59. 
« 1672, c. 6 ; Act. Pari viii. p. 64. " AU law having thought fit to use 

more citations than one in matters of importance, by our law, before this 
Act, he who raised a Summons cause execute the same by any person he 
pleased, who is called a Sheriff in that part, after which he did get an Act 
of Continuation from one of the clerks, and a second Summonds, both of 
which were caUed an Act or Letters, and were signed by the clerk ; but 



104 LORD 8TAIE. 

The system of R^istiation of deeds, which had been intro- 
duced in 1617,^ and which Stair on many occasions helped to 
improve, received a development in the enactment, that all 
charters, infeftments, commissions, gifts, and other writings 
passing the Great and Privy Seal, should be registered in these 
Begisters respectively before the Seal was appended to them ; 
and the writers to these Seals were not merely to mark them 
on the back as registered, but also to keep a perfect Minute- 
Book containing the names, surnames, and designations of the 
persons in whose favour the charters and writs were granted, 
with the names of the lands and special matters contained in 
them.* 

This Act also made two important practical improvements 
in the form of titles : the Precept of Sasine, which had hitherto 
been a separate writ passing the Quarter Seal, was in future to 
to be inserted in the Charter, and permission was given for 
writing charters and writs passing the Seals in the shape of a 

because that was confusing and troublesome, therefore, by this Act, these 
Acts and Letters are taken away, and two citations on the first Summons 
were declared to be sufficient." — Mackenzie, Ohserv,, p. 427. 

^ 1617» 0. 16. There had been some prior attempts to establish a system 
of registration. See 1425, c. 67 ; 1469, c. 39 ; 1555, c. 29 and c. 46 ; 1587, 
c. 64 ; but the Act of 1617 is the leading Statute. 

* 1672, c. 7 ; Act ParL viiL 69. Mackenzie's account of the Scotch 
system of Registration, Treatiaes on the Law of ScoUandt p. 28 : "An 
• answer to some reasons, printed in England, against the overture of bringing 
into that kingdom such registers as are used in Scotland," shows how alive 
the lawyers of this period were to its advantages. He concludes : *' Since 
these registers have been found so advantageous, and that experience hath 
herein seconded reason, ^Us humbly conceived thai Scotland ie much to be magni- 
Jied for theae Begietere, and that England may, without dieparagement, intro' 
duce this new among their old Sta^Ues, whereby they cannot so properly be 
said to innovate as to enrich and augment their law, 'nee pudet ad 
meliora transire.' But I know the nation to be so wise and prudent that 
if they understood our Register as well as they do their own concerns, 
they would prefer them to those reasons this gentlemen has affirmed against 
them." This understanding has not however, after the lapse of two hundred 
years, been attained ; the Act of Lord Westbury, introducing similar regis- 
ters, has failed. 






LAW AS TO EXECUTION AGAINST LAND. 105 

book instead of a roll, their authenticity being guarded by 
a provision that the Seals were to be appended on a band, 
which was to go through all the leaves in the margin. The 
privilege of Boyal Burghs to arrest strangers, until they should 
find security to pay debts due to the burgesses, was con- 
fined within more reasonable limits by enacting that it should 
only apply to debts due for ** horse meat or man's meat abuil- 
ziements, or other merchandice for which the burgess had no 
security except his account-books." Burghs of Barony and 
Begality were declared to have no such rights.^ The mer- 
ciful provision of the Ann, which allows the executors of 
deceased ministers a half-year of their moderate stipends in 
addition to their legal rights, and which had been introduced 
by an Act of Queen Maiy, and a letter by James vl to the 
Assembly at Montrose, in 1580, in imitation of a provision of 
the German Beformed Church, was further r^ulated, and the 
necessity of a conformation in such cases dispensed with.' 

But the most elaborate of the Statutes which affected 
private law was that regulating special adjudication, which 
was introduced in lieu of the apprisings of the older law.' The 
law of Scotland, notwithstanding the strictness of its feudal 
principles, had at a much earlier period than that of England^ 

1 1672, a 8 ; Act Pari. yiiL 69. 

* 1672, c. 13 ; Act ParL viiL 73. The subject of the Ann is learnedly 
discussed by Mackenzie in his Observations on the 4th Act of Queen Mary's 
Thiid Parliament— fTorlv, i. 255. 

' Karnes, Law Tracts, x.. Execution. 

^ The tardy reform of the English law in this particular is almost in- 
credible. Prior to the Statute of Westminster, the second lands them- 
selves could not be taken in payment of debt The only remedy of the 
creditor was by the writs of fieri facias or levari fadaa, which attached merely 
goods, chattels, and the present profits of lands. By that Act the writ of 
degU was introduced, under which the debtor's goods and chattels were not 
sold but appraised, and delivered to the judgment creditor at the appraise- 
ment in satisfaction of his debt If insufficient to satisfy it^ one-haff of hie 
freehold lands were delivered to the creditor to be held till the debt was paid 
out of the rents. But it was not till 1 and 2 Vict c 1 10, that this remedy 
was extended to copyhold lands and to the whole instead of the one-half of 



106 LORD STAIR 

recognised the necessity of allowing land to be sold for payment 
of debt. A Statute of Alexander L empowered the Sheriff, 
when the debtor^s moveables were insufficient, to sell his land 
for payment of his debts.^ This speedy remedy however fell 
into desuetude, and by the Act 1469, c. 3,* apprisings were in- 
troduced by decree in which the creditor sold or entered into 
possession of the debtor^s lands, but the debtor could redeem 
them within seven years from the purchaser or creditor. 
The superior was bound to receive the purchaser or creditor as 
his vassal on payment of a year's rent. The practice which 
followed upon this Act of leading apprisings before Messengers 
at Arms, as Sheriffs in that part, and of apprising large estates 
for small debts, became very oppressive, and although some- 
what mitigated by the Act 1621, c. 6, which enacted ''that the 
rents intromitted with by the creditor, if more than sufficient 
to pay his annual rent, shall be applied towards extinction of 
the principal sum," a further remedy was found necessary. 
This was given by the " Act for ordering the Payment of Debts 
betwixt Creditor and Debtor,^ passed in the first Parliament of 
Charles il' Besides several temporary provisions to ease the 

the debtor's freeholds. Prior to this Act copyhold lands could not be taken 
in execution for debt. And as regards a deceased debtor, his heirs who suc- 
ceeded to his freehold land were not liable to pay his debts unless named in 
a bond or contract under seal (called specialty debts), until an Act in 1807 
made the heirs of deceased traders so liable, and another in 1833 all heirs ; 
but copyhold lands were not liable for the debts of their deceased owners, 
eyen where specially named in bonds or contracts under seal, until the Act 
of 1833. See on this subject Williams, Seal Property, 9th ed., p. 77, e< m?., 
and 348. The Scotch Courts had, at least as early as 1626, by an equitable 
extension of adjudication, known as adjudication contra JteredUatem j<icentem, 
allowed the creditor of a deceased debtor to force the heir either to represent 
his ancestor, in which case he became liable for his debts, or to relinquish 
his claim to the debtor's estate, which was then adjudged to the creditor. 

1 Act Pari i. 371. 

' 1469, c 37 ; Act. Pari. ii. 96 : " An quhare the debtoure has no moveble 
gudis bot his land, the Scheriff before quham the said soume is recoverit be 
the brefe of distress sail ger sell the land to the avail of the det and pay the 
creditor." 

^ 1661, c. 62. At the time when this Act was passed a great part of 



ACT AS TO SPECIAL ADJUDICATIONS. 107 

landed proprietors sunk in debt by their misfortunes during the 
troubles, this Act introduced what has since been called general 
adjudication, by which, where the lands comprised exceeded in 
yearly rent the annual rent or interest of the sums contained 
in the comprisings and the expense of infeftment, the debtor 
might desire the creditor to possess the lands comprised, and 
the Lords of Session were authorized, on supplication by the 
debtor, to appoint the appriser to possess such part of the 
lands as they thought reasonable during the legal reversion 
or period within which the debtor might redeem. The period 
of this reversion was extended from seven to ten years, but in 
the event of the debt not being paid within that period, the 
creditor's right to the whole lands comprised revived. The Act 
of 1672 was intended to introduce an alternative form of 
diligence by which the Court of Session was to adjudge to the 
creditor a precise or special portion of the debtor's land 
sufficient to pay the debt, with one-fifth more in respect of 
his wanting the use of his money, and being compelled to take 
land instead ; the period of reversion of these special adjudi- 
cations was limited to five years. This Statute, which had 
been devised by five eminent lawyers. Sir Peter Wedderbum, 
Sir George Lockhart, Sir John Cunninghame, Sir Eobert 
Sinclair, and Sir George Mackenzie, was strongly opposed by 
the representatives of the burghs, who represented the moneyed 
interest, in Parliament, and though it passed through the in- 
fluence of the barons, was so much altered that it was not even 
used by the lawyers who had advised it. It subsequently 

the nobility and gentry of Scotland were inaolvent. Lauderdale is said to 
to have had difficulty in procuring a new coat to appear at Charles n/s 
court on his restoration. His correspondence, when he became Secretary of 
State for Scotland, is fuU of petitions for offices or pensions from the poor 
Scotch nobles and their relations, few of which seem to have been successful 
if we may judge by their constant repetition. Yet in 1681, out of a total 
revenue of £90,000 per annum, £25,000 was expended in pensions. — 
Chambers's Domestic Armale^ ii 427. As to the wretched condition of the 
Scotch nobility, see Scott of Scotstarvit's Staggtrmg State of Scotch Statemten, 



108 LORD STAIR 

became in practice inoperative, though still retained in the 
form of summonses of adjudication, until rendered unneces- 
sary in them by an Act passed in 1847.^ Stair^s support of 
this Act is said by Mackenzie to have injured his reputation 
although he had only complied with the desire of the lawyers 
who had contrived it, some of whom ''transferred their own 
guilt upon him/'' — a singular expression, as Mackenzie was 
himself one of them, but he probably intended by it to in- 
dicate Sir George Lockhart 

Another subject keenly agitated in this Parliament was a 
proposal to do away with the Summer Session of the Court of 
Session, and add a month or two to the Winter Session.' 
Lauderdale heard a debate on this point from five on each 
side — Stair, Mackenzie, the Duke of Hamilton, the Earl of 
Dundonald, and the Chancellor, being for the change; Lord 
Hatton (Lauderdale's brother), the Earl of Tweeddale, Lord 
Gosford, the Provost of Edinburgh, and Sir Sobert Sinclair, 
against it. Lauderdale himself at first was favourably disposed 
to the proposal, but, according to Mackenzie, altered his mind 
through the influence of Hatton, and the overture was allowed 

^ 10 and 11 Vict c 48, sect. 18. 

^ Mackenzie'a History, pp. 221 and 222. In 1681 there was an attempt 
made to rescind this Act which feU to the ground by the adjournment of the 
Parliament : " There was an Act brought into the Artidea at the mediation 
of the Writers to the Signet for taking away the new Act of Adjudications 
introduced in 1672, and bringing back the form and practice of comprisings 
again. This was opposed by the President of the Session, I mo, because he 
was the author of the said Act anent the adjudications. ... By the pro- 
rogation of this Parliament this motion ceased. . . . 2do, his son, being a 
Clerk of the Session, had much benefit by these adjudications." Stair him- 
self says of the Act of 1672 : " This Statute has taken away the greatest 
reproach upon our law, which for every debt indefinitely apprised every 
estate, great or small, which had no excuse but that the debtor might re- 
deem within seven years.** — Inst, iiL 2. 54. 

' Mackenzie's History, p. 222. An Act abolishing the Summer Session 
was afterwards passed in 1681, but it was restored in 1686. The month of 
March was substituted during this period for the Summer Session. — See 
Fountainhall*8 Decisions, p. 177. 



GRANT OF MARKET AT KIRK OF OLENLUCE. 109 

to sleep. When again brought forward in Parliament, he in- 
terposed his veto as Commissioner, ** swearing it should never 
be taken away except his Majesty named another Commis- 
sioner." ^ As in almost every political decision in this period 
undue influence was suspected. The Duchess of Lauderdale, 
it was said, had been solicited or bribed by the town of Edin- 
burgh, whose trade would have suffered by doing away the 
Summer Session, but Mackenzie declares, ''after exact in- 
quiry, I found these to be mere calumnies.^ 

Amongst many grants of markets and fairs made in this 
Session of Parliament, which indicate the increasing agricul- 
tural prosperity of the country, but also the system of monopoly 
by which it was retarded, was one for a weekly market and 
two yearly fairs at the Kirk of Glenluce, in favour of Sir James 
Dalrymple and the Bishop of Galloway. The grant proceeded 
on a petition, in the conciseness and pertinency of which the 
hand of Stair may perhaps be detected. It set forth that the 

^ Mackenzie, p. 223, H nq. The argnineDt on both sides is canons. On 
the one hand it was said, " That the Summer Session was a great hindrance 
to the policy and to the oountiy affairs of the lieges, as weU as to their 
pleasure, for, before men could settle at home after the Winter Session, they 
were called again to the Summer Session, so that their projects and changes 
were interrupted and ruined ; and the months of June and July, which were 
the only pleasant months, and the only months wherein gardens and land 
could be improven, were tpent m the most tmwholeBame and unpleasarU town 
qf Scotland, Nor could it be denied, that by having two Sessions the people 
were put to a double expense in travelling to Edinburgh ; and when they 
came in June, the half of the Session was spent before business was entered 
upon ; so that by adding one month to the Winter Session, more business 
might be despatched in five continued months than in six months with such 
interruptions as ordinarily attended the beginnings and endings of Sessions." 
In favour of a Summer Session it was represented, *' That no nation which 
had Courts of Justice did interrupt the course of justice for six months 
together, and that the want of Courts for so long a time in the kingdom 
would reader it wild, and make malefactors insolent and debtors insolvent, 
which were greater prejudices than any that could be pressed on the other 
hand ; and since the Session was not in six months able to expede the pro- 
cesses that lay before them, it was not to be expected they could despatch 
them in five.'* 



no LORD STAIR 

buighs of Wigton and Stranraer stand near the extremes of the 
shire of Wigton, and are twenty-eight miles distant from each 
other, there being no town or market-place betwixt the two, to 
the great prejudice of the li^s ; and that the Kirk of Glen- 
luce stands betwixt the two bui^hs in the middle of the shiro, 
and is a necessary pass by which not only all who go from one 
part of the shire to another, but by which all that go from 
Ireland to England, and from England and the southern parts 
of Scotland, must travel, and so is a convenient place for fairs 
and markets.^ The days of this fair were afterwards changed 
by the Parliament of 1681. 

This is only one of several instances in which we find 
Stair actively engaged in measures for the improvement and 
advantage of his estates. In this or the following year, along 
with Sir John Nisbet, the Lord Advocate, and his own cousin, 
John Chalmers, laird of Gradsgirth, he brought an action, in 
the Court of the Commissioners of Teinds, against the heritors 
of the parishes of Ochiltree and Tarbolton in Ayrshire. The 
object of the action was the suppression of the parish of Bam- 
well, which was inconvenient, owing to its distance from the 
mansion-house of Stair— the annexation of part of it to the 
parish of Tarbolton, and part to the parish of Craigie, and the 
erection out of the three parishes of a new one to be called the 
parish of Stair. The Commissioners appointed a Committee to 
inquire into the facts, which gave in a report approving of the 
proposal, suggesting that a stipend should be modified to the 
minister of the new parish, and the patronage vested in Stair, 
who was to provide the manse. and glebe. This report was 
approved of by the Commissioners, and a decree, in terms 
of it, was pronounced on 9th July 1673.* 

Stair was again returned for Wigtonshire in the short 

1 Act PsrL viii. 442. 

' GonneU On Parishes^ 51-3 ; and the Report of the Committee in the 
same work, Appendix No. 22. 



INCIDENT OF THE WOMEN'S PETITION. Ill 

Parliament of 1673, which sat only from 12th November to 
the 2d of December, and, after several adjoamments, was 
dissolved on 19th May 1674. It did nothing but pass three 
Acts relating to the excise, discharging the taxes on salt, 
brandy, and tobacco ; and a fourth, which allowed all persons 
to wear silk white lace and satin ribbons, a right which, by 
a Sumptuary Act of the preceding Parliament, had been 
limited to certain privileged classes. This privilege would 
not be very extensively taken advantage of, if we credit 
Diyden's lines : 

*< Laced linen there would be a dangerons thing. 
It mighi perhaps a new rebeUion bring ; 
The Scot who wore it would be chosen king ! " ^ 

The frequent adjournments and final dissolution of this Par- 
liament were intended to prevent the grievances, which the 
Duke of Hamilton and his party alleged against Lauderdale, 
from being discussed.' 

In this summer an incident, very characteristic of the 
times, occurred in the Parliament Close at Edinburgh, in 
which Stair was an actor, and of which Kirkton has left a 
graphic account in his History: ^'Because men durst not," 
he writes, "the women' of Edinburgh would needs appear in 
a petition to the Councell, wherein they desired a gospell 
ministry might be provided for the starving congregations 
of Scotland. Fifteen of them, most part ministers' widows, 
engadged to present so many copies to the principal lords 
of Councell, and upon the 4th of June filled the whole Parlia- 

^ Prologue tpohen at Oxford, * See Mackenzie, History, p. 267. 

' The part taken by the women of Scotland, from the earliest dawn of 
the ReformatioD, in the religious struggles of the times, is very remarkable. 
" Yea, I dare say," writes Rothes to Lauderdale in 1665, '* if it were not for 
the women, we should have little trouble with conventicles, or such kind 
of stuff ; but they are such a foolish generation of people in this countiy, 
who are so influenced by their fanatick wives as I think will bring ruin 
upon them." — Lauderdale iiss., British Museum, zz. 147. 



112 LORD STAIR. 

Parliament Clossa When the Chancellor came up, Sharp 
came np with him, and as the Chancellor left his coach, 
Sharp clapt close to his back, fearing, it may be, bodily harm, 
which he then escapt : only some of them reproached him, 
calling him Judas and traitor, and one of them laid her hand 
upon his neck, and told him that neck must pay for it ere 
all was done, and in that guessed right ; but this was all 
he suffered at that time. Mr. John livingstone's widow* 
undertook to present her copie to the Chancellor, which 
she did. He received it, and civilly pult off his hat. Then 
she began to speak, and took hold of his sleeve. He bowed 
down his head and listened to her (because she spake well)^ 
even till he came to the Councell chamber door. She who 
presented her copy to Stair found no such kind reception, 
for he threw it upon the ground, which made one teU him he 
did not so with the remonstrance against the king which he 
helped to pen. But when the Councell conveened, the petition 
was turned into a seditious lybell in the vote of the Court 
The provost and guard were sent for, but none of them were 
very cruell, only they threatened, and the women dissolved. 
Thereafter, for ane example, some of them were cited, and 
some denunced rebels. Three women they incarcerate also for 
a time — James Clelland's wife, Lilias Campbell, and Margaret 
Johnston, a daughter of Wanston's ; and this was the end of 
that brush." 

^ This was the widow of the Minister of Ancrum, who had been one of 
the Commissioners to Holland in 1650. 

* Mackenzie gives another acconnt of the ChanceUor and Mrs. Living- 
stone's conversation : " Many hundreds of women," he says, *' filling the 
Parliament Close, threatened the Archbishop of St. Andrews, who past 
along with the Chancellor, for whose coming he had waited in his own 
chamber ; and some of them had conspired to set upon him, when a tevman, 
whom I shvn to namCf sbould raise her hand on high as a signal ; to pre- 
vent which the ChanceUor, by entertaining the, women with insinuating 
speecbes aU the time as he past to the Council, did divert that bloody 
desiga" — History, p. 273. But it is difficult to believe, if such a design 
existed, that the ChanceUor could have had cognisance of it. 



THE GREAT SECESSION OF THE ADVOCATES 113 

■ 

Sialics conduct on this occasion was in keeping with what 
appears to have been throughout his policy towards the Con- 
venticlers. Though ready to assist in measures of conciliation 
and accommodation in favour of the Presbyterians, he was 
anxious to show he discountenanced the acts of the wilder 
and more riotous spirits of that party. 

In this year the contention^ between the bench and the 
bar broke out anew. The subject of dispute was the right of 
appeal from the decisions of the Court to Parliament, which 
was one part on which the negotiations for union in 1670 
miscarried. Although now almost forgotten, this dispute was 
regarded at the time '' as the most notable misfortune that has 
ever attended the Session," ^ and was of political as well as 
professional importance. It was another form in which the 
stubborn independence of the Scotch character, stifled in Par- 
liament, and in vain attempted to be suppressed in the Church 
by a mixed policy of severity and indulgence, showed itself. 
The lawyers, however, can boast no martyrs, though they con- 
ducted the contest for a time with spirit. 

The controversy originated in an appeal presented to the 
Scotch Parliament by the advocates for the defender, in an 
action by the Earl of Dunfermline against the Earl of Cal- 
lendar,' relative to the construction of the marriage-contract 
of the Countess of Dunfermline. The point, however, on which 
the appeal was taken was one of procedure merely. The case 
had been reported by the Lord Ordinary to the full Court, and, 
when after several adjournments, that the Earl of Callendar 

^ See Mackenzie's History^ p. 267 et seq., for the fullest account of the 
Secession of the Advocates. Also Kirkton's History, p. 347 ; Law*s Memo- 
rials, p. 73 ; Maidment's Scottish PasquUs, p. 21S ; and Stair's Apology, p. 6. 
For modem accounts, Laing, ii. 64, and note ii. ; Burton, yii. 476 ; Address 
of Lord President Inglis to Juridical Society of Edinburgh. 

* Forbes's Preface, p. 16. 

^ See the report, Earl of Dunfermline v. Earl of Callendar, Stair's Deci- 
sions, 6th February 1674, and 16th February 1676; also in Morison's 
Dictionary, 2941, 1 Brown's Supplement, 

H 



lU LORD STAIR 

might be present^ it was called at a diet when his advocates 
had undertaken to answer without further delay, they pleaded 
that there was no process, because it ought to have been 
enrolled for hearing and waited its turn on the Boll, according 
to the Begulations of 1672. It was replied, that the defender 
having procured delay on an undertaking to answer, they could 
not now interpose a dilatory plea.^ The Court gave efifect to 
this reply, and determined to hear the cause, on which an 
appeal to Parliament was presented on behalf of Lord Callendar. 
That nobleman was cited for the appeal as a contempt of Court, 
and gave in a paper drawn by his counsel, the first advocates 
then at the bar, — Sir George Lockhart, Sir Bobert Sinclair, 
Sir John Cunninghame, and Sir George Mackenzie, names 
frequently associated at this time in political measures, as 
well as in the conduct of litigation, — that he designed nothing 
but to protest for remeid of law, by which cases were occa- 
sionally removed from the stricter procedure of the Court 
of Session to the more flexible jurisdiction of Parliament. 
These advocates were then summoned before the Court, where 
they adhered to their paper. The matter was now deemed 
of so much consequence that the Lords of Session addressed 
a letter' to the King on the subject; and Lauderdale being 
about to return to London, he was accompanied in the 
Spring vacation by Stair and Wallace of Craigie, another of 
the Judges.' The King sent down an answer condemning 
appeals, but ordering no further proceedings to be taken 
against the advocates if they disowned them; but if they 
refused they were to be debarred from " the exercise of any 



1 stair's DeeishnB, iL 262. 

* Letter, 28th February 1674. — ^Books of Sedenmt, Begister House, 
Ediaborgli. 

^ Mackenzie's Hiatory, p. 269. " Immediately after he went to Conrt, 
taking the Lord President and the Lord Craigie with him, to second their 
own letter.'* 



APPEAL TO PARLIAMENT— SECESSION CASE. 1 1 5 

part of their practice as advocates in time coming."^ Sir 
George Lockhart and Sir John Gunninghame having been called 
before the Court, refused to disown the appeal, declaring that 
'' though formal appeals might be said to be contrary to the 
62d Act of the 14th Parliament of James IL, yet a protestation 
for remeid of law might be allowed." Upon which they were, 
in terms of the Eing^s letter, debarred from employment About 
fifby of their brethren, resolved to share their fate, seceded from 
the Parliament House, and left Edinburgh, Lockhart, with one 
party, taking up their quarters at Haddington, Gunninghame 
with another at Linlithgow. The Privy Goimcil, by a procla- 
mation on the 19th of December,' turned this voluntary exile 
into banishment, prohibiting their return within twelve miles 
of the capital An able but not very respectful letter, originally 
written by Sir Geoige Mackenzie, but which he tells us was 
so much altered by Lockhart that he only signed it ** to prevent 
. a rupture at a time when their formal adherence to one another 
was their only security," was presented to the Privy Gouncil,' 
by which it was voted seditious. In the meantime Lockhart, 
Gunninghame, and Sinclair went to London in the hope of 
arranging matters with the King, and Mackenzie having " in- 
tercepted a letter, wherein they told their confidents that they 
had resolved to wait the event of that process,^ in which, if Sir 
Geoige Mackenzie was absolved, they would be secure by the 
preparative, but, if he was found guilty, the malice of the pur- 
suers would be blunted before it reached them," was so dis- 
gusted that he resolved to submit, and induced the great bulk 
of the appealers, as the advocates who had withdrawn were 
called, to present a petition to the King, asking for readmission 

1 King's letter, 19th May 1674.— Mackenzie, Higtcry, p. 269. 

* 19th Deoember 1674. — Privy Council Records, Register House, Edin- 
burgh. 

' 28th January 1675. — Mackenzie, History, p. 279. 

* The process was the Indictment by the CounciL — Mackenzie's Defences 
to the Indictment will be found in his Hisiory, p. 294. 



116 LORD STAIR. 

and disclaiming the right of appeal* They were accordingly 
restored, and the rest shortly followed their example.^ 

It is easier to pronounce an opinion that an appeal of the 
kind presented hy Lord Callendot's advocates was contrary to 
law and would have been highly inexpedient, for the Parlia- 
ment of Scotland was a body quite unsuited to determine legal 
questions, as Mackenzie' himself admits, than to estimate 
fairly the parts of the leading actors in this transaction. The 
treatment of the advocates was undoubtedly high-handed, 
dictated by a policy of repression similar to that which, in the 
case of the outed ministers, kept up the state of chronic dis- 
aflFection which ended in the Eevolution of 1688. Their pro- 
test for the independence of the bar and their neglect of personal 
considerations in its assertion deserve the sympathy of all 
who regard the honour of a profession in which, when honour 

^ 24th June 1675. 

^ A. S., 25th January 1676. — ^Most of the advocates had been already 
re-admitted. See MS. Books of Sederunt, 7th and 8th January 1676, Register 
House, Edinburgh. 

' ** This appeal displeased most sober men, who considered that by this 
method the nobility, who always govemed Parliaments, would thereby too 
much influence private causes; and that ignorant members of Parliament 
would have an equal vote on the subtlest cases of law with those whose 
breeding and experience had rendered them fit dispensers of justice." — Mac- 
kenzie, History^ 268. And Lord Fountainhall, one of the seceders, seems to 
have come round to the same opinion, for he remarks in 1681, when a proposal 
to allow appeals had been mooted, *' Yet some think our civil rights and in- 
terests as well and safely lodged in the Session as in a Parliament who judge 
more with a biass and in a hurry, and with less regard to law, than the 
Lords of Session do." Burnet, with his usual acuteness, has noted a political 
object which, no doubt, moved many of the supporters of the right of appeal : 
^ A cause being judged in the Supreme Court of Session, the party appealed 
to the Parliament. This was looked on as a high contempt dont on design 
to make the Parliament a Court of JiuiiccUure that ao there might he a neeeesUy 
of frequent Parliaments,^* He does not appear, however, truly to estimate 
the merits of the question, for he adds, "So the Judges required all the 
lawyers to condemn this as contrary to law. And they had the words of the 
law on their side, for there lay no such appeal as stopt process, nor was there 
a writ of error in their law. But upon petitions Parliament had, though but 
seldom, reviewed and reversed the judgments of the Courts, so the debate 
lay abont the meaning of the word Appeal" 



MOTIVES OF LEADING ADVOCATES AND STAIR. 117 

is lost, all is lost But private and less creditable motives 
mingled in their conduct Lockhart was believed by some to 
have advised the appeal, hoping the Parliament would drive 
Stair from the Presidency, and he would succeed to it Mac- 
kenzie, it is apparent from his own account of the transaction, 
was actuated throughout by a mean jealousy of Lockhart, from 
whose talents he could not withhold his admiration while he 
nev^r spares an insinuation against his character. The popular 
voice loudly blamed the conduct of Stair. A parody of the 
ballad Farewell^ Fair Arrwida gave expression to this in the 
following lines : — 

** Blame not Craigie Wallace, nor call him your grief, 
It was Staire and not he that deny'd you rehef ; 
Abuse not his letter, nor caU him severe, 
Who never, Gk)d knows, had his Majesty's ear. 

• • . . a • • 

But since a rumple President does sit, 
That serfs at bar should domineer was fit"^ 

His former profession as usual was used as a butt by the 

satirist : — 

'^ Eemonstrant^ good Mas James, how came't to pass 
Your once too thick is now so thin a class 1 
Are your lads laureat, or have they plaid 
The truant since you them so tightly paid % 

Ill-natured stinkard boys who disobey 
Your Regent thus — yet for excuse they say 
Your Tuptos and your Ergos are so kittle. 
Your Topicks and your Ethicks are so fickle, 
Your Ferulas and your Taws they are so sair, 
The boys vow they'll go to school no mair."' 

Mackenzie, echoing the popular complaints, accuses Stair of 
having been influenced, in his condemnation of the appeal^ by 
Lauderdale who had a private interest in the cause from his 

^ Maidment, Scottish Paaqwls, p. 219. 

^ The allusion is to Stair having aigned the Kemonstrance of 1651. 

^ Maidment, Scottish Pasquils, p. 221. 



118 LORD STAIR. 

relationship to Lord Danfenolina Stair has defended himself 
in his Apology by saying, " I have been quarrelled for being 
the author of the banishing the advocates from Edinburgh in 
the year 1674 in the harvest vacance, which is taken notice of 
in the grievances as an encroachment upon their due by the 
then Privy Council whereof I was altogether &ee ; for it was 
done in the vacant time when I was in the country, and the 
inspection of the Sederunts of the Council will demonstrate 
that in the whole vacance I was not present, yea, seldom was I 
present in any vacance,^ and ofttimes absent in Session time, 
especially when the affairs of the Council required afternoon 
meetings. Grod knows I had no pleasure in the affairs which 
were then most agitated in CounciL" He has recently found 
an eminent advocate in the present occupant of his Chair : 
" Such an invasion of the privileges and independence of the 
bar," observes Lord-President IngUs, " was alien alike to Lord 
Stair^s natural disposition and to his political tendencies, and 
is inconsistent with his conduct on all occasions when the in- 
terest of the bar was concerned, A few years before he op- 
posed the separation of the advocates into two classes, one to 
practise in the Outer and the other in the Inner House, and 
a proposal made about the same time to require an oath from 
the advocates that they would not take larger fees than such 
as should be fixed by the Court ; and for his services in op- 
posing these innovations he received the thanks of the 
Faculty/'* 

Yet it is impossible, after a review of the whole circum- 
stances, to accept either defence as sufficient It is true Stair 
was absent from the Council' at the meeting when the advo- 

^ Stair seems generally to have resided daring the vacation in the country. 
In July 1661 President Gilmour, writing to Lauderdale about some business 
of the College of Justice, notices, <* Lord Stair's hand is wanting, being at 
this time out of town.'' — Lauderdale liss., British Museum, 13th July 1661. 

* Lord President Inglis. — Address to JuridiccU Society, 

' This has been ascertained by inspection of the Records of the Council 
in the Kegister House, Edinburgh. 



^^^^■■^^^■^■■■iHVBiVHlVHmMiVMHaVllV^ 



EXPLANATION OF STAIRS CONDUCT. 119 

cates were banished, but he personally waited oil the King 
when the letter was obtained ordering them to be debarred ; 
and he concnrred in, if he did not direct, all the acts of the 
Court by which this was carried out It is also true that on 
more than one occasion he contended for the privileges of the 
bar, but in none of these had it come in conflict with the Court 
On the other hand, the charge of subserviency to Lauderdale 
does not appear to be made out Though his intimacy with 
that strange and coarse character must be deemed a blot on 
his awn, in this instance a more important issue than the result 
of a private cause and the favour of a powerful minister was 
evidently involved in the eyes of Stair and the Judges — ^the 
independence of the Court It was for this he fought as 
keenly^ as the advocates for the independence of the bar ; and 
had he not sanctioned the unjust measure of depriving the 
advocates, for their advice to their client, his conduct might 
have admitted of a complete defence. On the merits of the 
question, whether considered as one of mere law or of political 
expediency, he was undoubtedly in the right It is true 
the advocates attempted to show that the appeal they had 
presented was only the known form of a protest '' for remeid 

1 Besides that referred to in the text, several letters from the Court of 
Session to the King and to Lauderdale, with reference to the secession of the 
advocates, will be found in the Books of Sederunt ; see I7th June 1675 and 
4th June 1676. — Books of Sederunt, Begister House, Edinburgh. There is 
also a letter from Stair to Lauderdale in the British Museum. Lauder- 
dale Papers, 23. 115, c. 4, No. 8, in which the following passage occurs : 
«*Ther is abundance of processes before the Session, and all carried through 
as ordinar, which every day doth mor and mor show how far these gentle- 
men have mistaken their measures in apprehending they are so neces- 
sare as that they would not but get their will if they stuck together." The 
date is 26th January 16^. It occurs in a series of papers headed, ** Relating 
to the Debaited Advocates," which do not contain much new matter beyond 
what is oontained in the Books of Sederunt and Privy Council Records, but 
show, what I have not observed noticed elsewhere, that there had been at 
least two other appeals besides that of the Earl of Callendar, one by the 
Marquess of Hamilton and another by Lord Aboyne in name of the Marquess 
of Huntly. 



120 LORD STAIR 

of law," by which, in extraordinary cases, suite were removed 
from the Session to the Parliament ; but the appeal presented 
in this cause was in reality something quite different It was 
not, as the protest for remeid of law, a transference of the pro- 
cess on the ground that Parliament was the proper tribunal 
to decide it, as was done in the case of the burghs of regality 
— it was a claim that every interlocutor should be subject to 
review by Parliament, which, if successful, would have made 
the orderly progress of every action impossible, unless Parlia- 
ment had sat continuously, and appointed a Judicial Committee 
for the purpose of hearing causes. The reasons which render 
the appeal to the House of Lords, on the whole, a benefit, 
though by no means an unmixed benefit, for the adminis- 
tration of justice in Scotland, are quite inapplicable to such 
an appeal as was contended for to the Scotch Parliament. 

Three of the lawyers who took part in this, the greatest 
of the three secessions of the period, may be taken as repre- 
sentatives of the brilliant epoch of the Scotch bar when Stair 
presided over the Court. It is no digression from his life 
briefly to notice the characters of the men with whom he was 
brought into daily professional contact. 

Sir George Lockhart of Camwath was, in the opinion of his 
contemporaries, the greatest lawyer the Scotch bar had ever 
known. His rival Mackenzie describes him as a new edition 
of the Corpus Jwns and as a second Cicero.^ His junior. Sir 
John Lauder, describes the auditors of one of his great speeches 
as sorry when he came to an end,^ — the rarest praise that can 
be bestowed on an orator. 

^ Locartius Ck>rpu8 alterum Juris Civilia, alterque Cicero did poterat*—* 
CluiracteTes AdvoecUorum Scoticorum, p. 7. 

* Of Lockhart's pleading in the case of the Town of Edinburgh, Fountain- 
hall says, Historical Notkea, i. 80, " As for Sir Geoi^ Lockhart*a part in 
this tragi-comedy, he acted it to the admiration of all hearers with so much 
lustre and advantage that, tho' in other things he surpassed aU his rivals, 
yet in this he exceUed, outdid, and surpassed himselfe ; his pungent aigu- 



CHARACTER OF SIR GEORGE LOCK HART. 121 

Bamet pronounces him the best pleader of any nation 
he heui ever heard, and he had doubtless listened to the fore- 
most advocates of Holland and of England as well as of 
Scotland, and, like most Scotchmen who have migrated to 
England, had no prejudice in favour of his own countrymen. 
Stair, after he had already sat for ten years in the Presi- 
dent's chair, and though he was eight years Lockhart's senior 
at the bar, declared that he would not have accepted the 
Presidency a second time had not Lockhart's career been 
closed by death.^ As is usual in famous speakers, these pane- 
gyrics seem scarcely justified by the specimens of his oratory 
that remain, which exhibit clear reasoning rather than extra- 
ordinary eloquence. Yet it would be wrong to discredit them. 
No fame is less durable than that of the pleader who rises to 
the highest pitch of his art when, careless of future fame, he 
concentrates his mind on the circumstances of the passing 
moment — ^the details of his cause, however unimportant ; the 
intellect and temper of his judges ; and, for the time at least, 
despises all knowledge which is not essential to the former 
and acceptable to the latter. But one who satisfied the in- 
tellect of Stair must have been no mean master of his pro- 
fession. 

He was the son of one of Charles l's judges,^ which pro- 
bably led him to choose the profession of the law; but it 

ments were carried in sach a torrent and irrenistible flood of eloquence the 
most impetaona and cliarming of anything ever I did hear, he did bo charm 
and with hia tongue draw na aU after him by the ears in a pleasant gaping, 
amazement, and constraint, that the wonderful effects of Orpheus's harp in 
moving the stones seems not impossible to an orator on the stupidest spirit ; 
and what Seneca jMiter, libro 3^ Controversiarum in praise says of Cassius 
Severus, that eloquent pleader, I found verified in myself and others, ' Terre- 
bamus ne definiret,' they were so far from wearying that they were afraid ef 
nothing more than that he should end too soon." 

^ " And it iB known to many of eminent quality, that while Sir George 
Lockhart lived I would neither desire nor accept of the charge.*'— ^^w/o^, 
p. 24. 

> Sir William Lockhart of Lee. 



122 LORD STAIR. 

was his own talents and those of his elder brother WiUiarn^ 
Cromwell's ambassador to France in 1656, the year George 
Lockhart passed for the bar, which gained him his first ad- 
vancement Only two years after passing, he was appointed 
advocate to the Protector during life, or '^ so long as he should 
demean himself therein.** ^ His appointment was determined 
by an event not contemplated in his patent, the end of the 
Protectorate ; bnt Ms father's loyalty saved him firom more 
than a humble acknowledgment of his regret of having been 
admitted during the usurpation. He at once took the lead of 
the bar, and though he seems not to have been &ee from two 
opposite vices, pride and avarice, his ability was never ques- 
tioned. It was tested, not merely in the conduct of a mass 
of ordinaiy causes, in which diligence and attention to business 
may sometimes pass for tal^t^ but in the great political trials 
produced by the troubles of the times, where mediocrity would 
speedily have been detected — ^the accusation and impeachment 
of Lauderdale, the prosecution of Baillie of Jerviswoode, and 
the defences of Mitchell and Argyle. His conduct in Parlia^ 
ment was independent, and, like Stair, he consistently opposed 
the unlimited exercise of the royal prerogative. 

In the debate against the Act making masters answerable 
for their tenants, it was uiged by him " that it was contrary 
to the justice of the Divine law, by which the soul only 
that hath sinned is punished, and never the innocent; and 
by the common law, 7u>xa caput seqwitur!*^ "Conscience," 
said the Chancellor, Lord Perth, at a meeting, in 1686, of 
the Committee of the Articles, when urging them to exempt 
the CathoUcs from the penal laws, " is a vague word, which 
signifies anything or nothing* " If conscience,'' rejoined 
Lockhart, " be a vague word without meaning, we wlQ 
change it for another phrase, which, I hope, means some- 
thing. For conscience let us put the fundaments laws of 

^ Pitmedden MS. ' Fonntainliall, Decisions, i 152. 



CHARACTER OF SIR JOHN LAUDER. 123 

Scotland." ^ Yet if a story, which has been repeated in various 
forms, with r^ard to other tests, may be accepted literally, his 
principles cannot have been strict When asked by Oliphant, 
a brother advocate, whether he could take the test, he replied, 
"Very welL" "Have you indeed considered it?" rejoined 
Oliphant "No, indeed," said Lockhart, "for if I had con- 
sidered it, I had never taken it." ^ 

On the death of Sir David Falconer in 1686, he was raised 
to the bench by James n. as President, and, it was thought, 
might have retained the office after the Bevolution, had he not 
been assassinated by Ghiesly of Dairy on a Sunday morning 
as he left the Church of St Giles, in revenge for an adverse 
decision in a submission to him as arbiter.' 

It is difficult, in estimating Sir John Lauder of Fountain- 
haU as a lawyer, while traversing Scotch history in the seven- 
teenth century, to forget the light which his indefatigable labours 
and observations * have thrown on many dark passages of the 
period. Tet it is probably a fair inference, that these same 
qualities gave him distinction as an advocate and judge. Bom 
on 2d August 1646, the son of a bailie of Edinburgh, he received 
his education at the High School and University of that ciiy, 

^ Macaulay's aathority is Citters, the Datch ambassador, whose despatch, 
in the original, he quotes. The Chancellor Perthes speech is thus reported : 
'*I>at het woort oonscientie niets en beduyde en alleea een individuum 
yagum was waerop der Chevalier Looquard dan verder gingh ; wil man niet 
verstaen de betyckenis van het woordt conscientie soo sal ik in fortioribus 
seggen dat wy meynen volgens de fondamentale wetten van het ryck.'* — 
Citters, H May 1686, Macaulay's History, ii 120. 

' Wodrow's AnaJecia, p. 111. 

' It is a singular coincidence that both his brother and his eldest son 
met violent deaths. William Lockhart was believed to have been poisoned 
in the Netherlands, where he went as ambassador for Charles ii. His 
nephew and namesake, the author of the Memoirs, a determined Jacobite, 
who opposed the Union, and acted as agent for the Pretender, was killed in 
a dueL 

* He was as industrious as and far more acute than Wodrow, but 
unfortunately did not digest his coUections. They are, however, the raw 
materials from which much of the history of the time has been written. 



124 LORD STAIR. 

where he graduated on 18th July 1664. His next three years 
were spent in travel in England, France, Flanders, and Hol- 
land, during which he attended the law schools at Poictiers 
and Leyden, but apparently only for a short time. On 9th 
November 1667 he returned to Edinburgh, and was admitted 
advocate in 1668. Next year he married a daughter of 
Bamsay of Abbotshall, Provost of Edinburgh, in consequence 
of which he became one of the legal assessors for that town. 
He commenced noting the decisions of the Court from the 
time of his becoming advocate, and continued it without in- 
terruption for nearly fifty years. His Decisions are of great 
value for the mass of information they contain on the history 
and state of society in Scotland during the period; but on 
this account are of less use on legal i)oints, as they con- 
tinually diverge into irrelevant matter. They are a complete 
contrast to the dry but precise reports of Stair.^ 

In 1681, with seven other advocates, the leaders being Sir 
George Lockhart and Sir John Dalrymple, he was counsel for 
Argyle ; and they having all signed a paper that Argyle's 
explanation of the Test was not treasonable, were called before 
the Privy Council ; but their offence (for as such it was 
treated) of signing an opinion in a criminal cause was passed 
over,* apparently at the desire of the Duke of York. In 
1685 he was elected to Parliament as member for Haddington- 
shire, which he continued to represent for twenty years. His 
political opinions were those of a consistent liberal, and strong 
Protestant On the debate, when James il's proposals for 
rescinding the penal laws against the Eoman Catholics were 
laid before Parliament, a question arose as to the name to be 
given them in the answer to the King's address. His speech 
on this occasion gives a fair representation of his liberality 

' Besides his DeciaioM, he left behind him numerous manuscripts, some 
of which have been published by the Bannatyne Club. 
^ Fountainhall, Decinons, L 166. 



CHARACTER OF SIR GEORGE MACKENZIE. 125 

and its limits. " I represented," he himself reports it, " that 
there was no man within the house more desirous to have 
these odious marks of division buried, and that we might all 
be united under the general name of Christians. It is true, 
the names under which they were known in our law were the 
designations of the papistical kirk, heresy, error, superstition, 
popish idolatry, and maintainers of the cruel decrees of the 
Council of Trent ; and though it was not suitable to the 
wisdom and gravity of Parliament to give them a title im- 
plying as if they were the true church, and we but a sect, yet 
I wished some soft appellation with the least offence might 
be fallen on, and therefore I proposed it might run thus, 
those commonly called Boman Catholic s." The Chancellor 
Perth, himself a Catholic convert, called this " nicknaming 
the King," and proposed it might run, " those subjects your 
Majesty has recommended to us." It was in the end carried 
that they should be simply caUed Boman Catholics. 

For his opposition to the repeal of the penal laws Foun- 
tainhall became obnoxious to the Government : his servants 
were arrested, and he had to conceal his papers, fearing a 
search. At the Bevolution he was raised to the bench under 
the title of Lord Fountainhall, by which name he is generally 
known. In 1692 he refused the office of Lord Advocate, which 
seems stiU to have been thought open to a judge, on a ground 
which does him honour — because he was refused liberty to 
prosecute the murderers of the men of Glencoe. At the 
Union he resigned his place as a justiciary judge, but con- 
tinued as Lord of Session till his death in 1722. As a lawyer 
his only superiors amongst his contemporaries were Lockhart 
and Mackenzie, and perhaps the Master of Stair. 

The character of Sir George Mackenzie has been repre- 
sented as an enigma by persons who have contrasted some of 
his published opinions and some of his public acts with the 
odium which has attached to his name. How, it has been 



126 LORD STAIR 

asked, could the bloody advocate have been the intiodacer of 
reforms in the severity of criminal practice ? and the persecutor 
of men for conscience sake the upholder of religious tolera- 
tion ? How was it that the man who was a moralist in youth, 
a student all his life, and who in old age retired from public 
life with content to the seclusion of a University, engaged with 
keenness in the struggles of ambition, and became the passive 
instrument, if not the active agent, of despotism ? Yet surely 
history has been read, and life observed in vain, if we are not 
prepared for such paradoxes in human conduct. But the ex- 
planation is not to be found in describing him as a man of 
moderate opinions approaching to indifferentism, but, by force 
of his position, a peteecutor. Were this true, the worst has not 
been said of him by his enemies. On the contrary, the key to 
his character appears to be, that he was, by birth, training, and 
conviction, the persistent advocate of the hereditary right of 
kings, and accepted all the monstrous consequences deduced 
from it by the lawyers and divines, who served and ruined the 
last of the Stuarts. His occasional expression of liberal opinions, 
and his occasional acts in the same direction, were forced upon 
him by the spirit of the times, which penetrated, as it always 
does, even those who were attached to the older order of 
things.*^ He was bom at Dundee in 1636 of a good Highland 
family, his father being brother of Lord Seaforth, and his mother 
a daughter of Dr. Bruce, Principal of St Leonard's College in 
S& Andrews. He was educated at the grammar-school of 
Dundee, and the Universities of Aberdeen and St Andrews, 
completing his studies by a three years' course in Civil Law 
at Bourges, which still retained the fame it had acquired from 
the lectures of Cujas and Donneau in the close of the sixteenth 

^ That Mackenzie was a Moderate is the view which Dean Stanley 
hastily adopted in his hriUiant hut inexact lectures on the Scotch Church 
from a paper by Mr. Taylor Innes, advocate, in the dnUemporcary Review^ 
to which the reader is refeired for an ingenious, but, as it seems to me, 
erroneous account of Mackenzie's opinions and conduct. 



MACKENZIE'S LITERARY WORKS. 127 

century. In 1656 he came to the bar, and four years after 
commenced his literary career, which, in the engrossing pursuit 
of his profession, he never abandoned. His first work was the 
romance of Aretina, one of the earliest prose fictions in the 
English language. He soon distinguished himself as an ad- 
vocate, being in 1661 one of the counsel for Argyle, whose 
son's prosecution he afterwards conducted In the following 
year, while still sedulously pursuing the study and practice of 
the law, he wrote several essays on subjects of general litera* 
ture, which, though they do not deserve Burnet's disparaging 
epithet of " superficial,'' as little merit the encomiums which 
have sometimes been bestowed on them. In 1663 he pub- 
lished the *' Beligio Stoici, a short discourse upon several divine 
and moral subjects ;" in 1665 a " Moral Essay upon Solitude," 
followed in 1667 by an essay upon ^ Moral Gallantry, wherein 
the author endeavours to prove that point of Honour (abstracting 
£rom all other Ties) obliges men to be Virtuous ; and that there 
is nothing so mean (or unworthy of a Gentleman) as vice." To 
this he appended " A Consolation against Calumnies, showing 
how to bear them easily and pleasantly," — an occupation which 
he must have had abundant opportunity in his life of practising. 
These performances, though they show ingenuity and observa- 
tion of human nature, and occasionally contain passages de- 
serving to be remembered, as the often-quoted one, — ^ it being 
in religion as in heraldry, the simpler the bearing it is so much 
the purer and the ancienter," ^ cannot justly be rated highly. 
They consist for the most part of well-expressed common 
places, and it may be doubted if many readers now peruse 
more than the title-pages, attracted by the name of the author ; 
nor wiU the few who have done more think those who have 
not have lost much. We have already seen the doubtful part 
he took in the secession of the advocates in 1674. The speech 
he made to the Court on behalf of his brethren on that occasion 

^ MackeDzie's Works, i. p. 73. 



128 LORD STAIR. 

has been preserved, and gives a favourable impression of his 
vigorous but somewhat pedantic eloquence. It was delivered 
in November 1674. The following is perhaps its best passage : 
— " I conceive that my employment is my estate, and if any 
of you left your sons advocates, or were to marry your daughters 
to advocates, you would think them well provided if the em- 
ployment were good It is my plough or ship, nay, it is my 
liferent right, and so, like these rights, it cannot be taken from 
me except I commit a crime, and, therefore, till I be guilty of 
a crime, I cannot forfeit my employment ; and I conceive I am 
guilty of no fault or crime, for many things are dischaiged 
which are not criminal, and nothing is a crime but what law 
makes so. But so it is, that there is no law that declares 
appealing to be a crime." The peroration is simple yet pointed : 
" Oblige in this your native country, who serves us as ye know ; 
oblige in this your law, that needs such instruments, especially 
in its infancy ; oblige yourselves, who need such superiors, and 
remember that to find out a right defence is much more hard 
and advantageous than to judge it rightly." He owed, his 
biographer suggests, to the part he took in this contest, his 
promotion to the office of King's Advocate, to which he was 
appointed in 1677, on the dismissal of Sir John Nisbet. It 
was his conduct, as Advocate, which rendered him detested by 
the Covenanters, whom he persecuted with unremitting zeal, 
no doubt mainly because he believed their principles incon- 
sistent with civil government, but also because he had no 
sympathy with their doctrines. He afterwards urged in his 
defence, that the number of those pursued to a violent death, 
and the nature of the sufferings of those who escaped it, 
had been exaggerated ; and this appears to be true. But the 
guilt of innocent blood is not to be measured by its quantity. 
Another sorry defence, which he made for himself, that he was 
a mere servant and acted imder the orders of the King and the 
Privy Council, is equally unavailing. His was a voluntary 



MACKENZIE ADVOCATE OF PREROGATIVE. 129 

and profitable service. He did at last resign it, but not till the 
worst of the persecutions were over, and for a significant cause — 
the dispensing with the penal laws against the Catholics by 
James IL in 1686 ;^ but he was restored to his post in the 
following year. 

His " Vindication of the Government of Chai'les il" is very 
able pleading, but in it, as in his earlier " Defence of the Privy 
Council," ^ the highest doctrines of the Divine Right of kings 
and of the Royal Prerogative are avowed, though the latter, 
which was addressed to Charles ii., is more outspoken than the 
former, written after the Revolution had scattered such notions 
to the winds. At the Revolution he strenuously opposed, in 
the Convention of the Scotch Estates, the resolution moved by 
Sir John Dalrymple, that James had forfeited the Crown. His 

^ In this he was more consistent in his intolerance than many of the 
advocates of toleration, but when the Presbyterians are blamed for not 
meting the same measnre to the Roman Catholics which they claimed for 
themselres, it must in fairness be remembered that they distrusted with 
good reason the policy of King James. 

^ In the Defensio Secreti Consilii coram Rege, he thus argues : Agnosco 
Regiam banc Prserogativam in tyrannidem incurrere posse 9ed nihil in omni 
parte beatum ; et hoc conf erendum incommodum cum his qusa in anarchic et 
bello civili necessario oriuntur. . . . Secundum mihi fundamentum erit quod 
Statuto 251 ParL 16 Jac. vi. agnoverunt Comitia Reges nostros summos esse 
eorumque PrserogativM tam amplas et liberas quam qu» ab ullo alio possi- 
dentnr Rege aut Princii)e. Cum ergo negari non possit quin Reges GaUia- 
rum et Hispaniarum heec omnia faciant (such kings as Louis xiv. or Philip n.) 
cui non et Reges nostri qui his concessione apert& a nobis hoc in Statnto 
fl&quii>arantur quod usque adeo omnibus inmotuit jurisconsidtis ut et Larsius 
qui de Lege Regia in professo limat^ scripsit in hujus statuti fide Regnm 
noetrorum imperinm non solum absolutius dixerit sed et Galliarum et His- 
paniarum imperio plane exiequaverunt. Tertiimi erit quod Statuto primo 
ParL 18 Jac. vi. Ilia omnia Regibua in futurum propria et pro PrcsrogcUims jure 
consdtutum est qua ab ipsorum prcedeceasoribua possent et qua illi olim exercuere. 

So, in his vindication of Charles u.*s government, he says, in describing 
the Revolution against Charles i. — ** From the Records and Acts of Parlia- 
ment, it is undeniable that the power of nominating Judges, Councillors, and 
all officers of State, the power of levying war and raining taxes, were usurped 
by the people ;*' and, in another place, *< the necessity of State is the sujmr- 
eminent Law, to which, upon occasion, all particular Acts must bow.*' 

I 



130 LORD STAIR 

opposition proving fruitless, he quitted his native country, and 
spent the remainder of his life in the pleasant and congenial 
exile of Oxford, a striking testimony to the toleration of the new 
Government. Before leaving Edinburgh he pronounced, in 1 689, 
as Dean of the Faculty of Advocates, the Inaugural Oration at 
the foundation of the Advocates' Library, which is his most 
honourable monument. While at Oxford he resumed the moral 
studies of his youth, writing alternately essays on Beason, 
Frugality, and the like, and vindications of himself and the 
government of Charles from the attacks of the Presbyterians. 

His legal writings were numerous, and are of considerable 
value. His Institutions we shall afterwards have occasion to 
refer to, and to compare with those of Stair. His best work 
in this department is undoubtedly his Observations on the 
Statutes, and his special Commentaries on the Bankrupt Acts, 
and on the Entail Act of which he was himself the author. 
Besides these he wrote a treatise on Criminal Law, the earliest 
on that subject in Scotland, and another on Actions. Through- 
out he is a pure legist He deals with the letter of the law 
and what can be deduced from it ; but he does this with great 
natural acuteness and the ability acquired by a practised 
pleader. Neither his learning, which is wide and varied, nor 
his diligence, which omits no pertinent point, can be questioned; 
but these qualities may be devoted to bad as well as to useful 
ends. *' Unfortunately," writes the living historian of Imperial 
Home, '' education in jurisprudence is not necessarily educa> 
tion in freedom." ^ Of this the life and character of Sir George 
Mackenzie is an eminent instance. 

^ Merivale's History of the Roman Empire, vii. 539. 



CHAPTER VII. 

1676-1681. 

The Ciiy of Edinbaigh undertakes to pay Stair's house-rent and that of his succes- 
sors in office as President— Lauderdale in Scotland in 1677— His policy— Trial of 
Mitchell— The Highland Host in the West, and Bonds of Lawburrows imposed 
on all persons in trust — Stair opposes these measures in Council— Sir G. Mac- 
kenzie's defence of them— Stair obtains alleviation of severe orders of Council 
against Covenanters— Important Acts of Sederunt of Court of Session as to Im- 
prisonment for. Debt and Protection of Debtors — Inventories of Registers — 
Against Sollicitation of the Judges — Diligence of Executor Creditor — Admission 
of Notaries— The Convention of 1678— Rebellion of 1679— Murder of Sharpe— 
Drumdog— Bothwell Bridge— The Sanquhar Declaration— Stair visits London 
to defend Court of Session — Charges against Lauderdale and the Court — Charles 
exonerates both — Duke of York comes to Scotland — Stair's speech to him at 
Holyrood'-The Duke returns in 1680 as Commissioner to Parliament instead of 
Lauderdale— Cruel measures of the Privy Council— Stair defends himself from 
the chaige of participating in them— Member of Parliament for Wigtonshire in 
1681 — ^Acts of this Parliament as to the security of the Protestant religion — Suc- 
cession to the throne— Against Conventicles— Test Act— Account of the debates 
on it— Legislation as to private law— Stair's Act as to execution of deeds— Ex- 
clusion of terce by marriage-contract provisions — Registration in burghs— ■ 
Judicial sales — Summary diligence on foreign bills — ^EvU consequences of Test 
Act— Trial of Argyll for taking it with qualification— Stair flies to London, but 
is refused an audience by Charles — Returns to Scotland — Deprived of ofSce as 
Judge — lives in retirement in Galloway, and prepares his Institutions for 
publication. 

The satisfaction which Stair gave by his discharge of the 
duties of a Judge continued after he was raised to the Presi- 
dency of the Court. In 1676 the Common Council of Edin- 
burgh, in consideration of his signal services to the town, 
ordered his house-rent and that of his successors as President 
to be paid out of the city revenue ^ — a privilege which con- 

1 ** The same day the Council, conaiddering the manie signall good offices 
don be Sir James Dalrymple of Stains, Lord President of the Session, to the 
commonweill of this citie in its just concern, which aught never to be for- 



132 LORD STAIR. 

tinned till 1741, when it was relinquished by President 
Forbes. 

The following year Lauderdale returned to Scotland, of 
which he had continued minister notwithstanding the address 
presented against him by the Parliament of England,^ in con- 
sequence of which he had been removed from oflSce in Eng- 
land where he had been one of the members of the Ministry 
called the CabaL The trial and execution of the fanatical Mit- 
chell,^ for attempting to murder Archbishop Sharpe, on a con- 
fession extracted from him by torture before the Privy Council, 
when his life had been solemnly assured, added to the odium 
in which his administration was held. Lauderdale, indeed, still 
hankered after the policy of Indulgence, and the Presbyterians 
never deemed him their greatest enemy, attributing the severity 
of his government to the prelates and the military commanders, 
who now began to assume an ominous prominence in the 

gotten be ns nor our Buccessors, and to the effect we may in some small 
measure evidence our sense of these many renewed acts of kyndness, both to 
his Lordship, and, on his accompt, to the succeeding Presidents of the Ses- 
sion, therefore we ordain and appoint our present Town Thesaurer and his 
successors in office to pay the house-rent and maill of his Lordship and suc- 
ceeding Presidents of the Session, their dweUing-houses within the Citie 
yearlie in time cuming to the relative heritors and landlords of their dwell- 
ing-houses, beginand the first year's payment at Martinmas 1676, yearlie and 
termlie thereafter, declaring hereby that payment made be our said Thesaurer 
to the said relative landlords, and their discharge of the house-rents shall be 
a sufficient instruction to the present and succeeding Thesaurers of the 
burgh for obtaining allowance thereof in their relative accounts thereanent 
these presents shaU be a sufficient Warrant." — Edinburgh Town-Council ms. 
Records, 15th December 1676. The Council had on similar grounds granted 
a seat in the Tolbooth Church to Stair on 25th February 1676, ibidem, 

^ Cobbett*s State Trials^ vi. 1025 ; Proceedings in the House of Commons 
against the Duke of Lauderdale, p. 1033 : *' Resolved nem. con. that an ad- 
dress be presented to bis Majesty to remove the Duke of Lauderdale from 
all his employments and from his presence and councils for ever, being a 
person obnoxious and dangerous to the Government." — See Macaulay, i. 223. 

^ For an account of this trial, see Burnet, History of hie Own Timea, i. 413, 
and the subsequent trial of Hatton for perjury in denying that Mitchell had 
been promised his life.^^Cobbett, StcUe. Trials, vi. 1262. 



OPPOSES MEASURES IN PRIVY COUNCIL. 133 

Privy Council, and its corruptions to his wife and his brother 
Lord Hatton ;^ but whatever may have been the influence which 
prompted them, some of the woi*8t measures of the Government 
of Charles n. in Scotland were perpetrated in this and the next 
years. Against one of these, the introduction of 'the Highland 
Host into the West Country, where the conventicles prevailed 
most. Stair protested, but in vain, as he did also against the 
imposition of the bonds of lawburrows, by which all persons in 
trust or public office were forced to oblige themselves to deliver 
up every Presbyterian minister who kept conventiclea " I do 
not remember," he says in his Apology, " any one person in 
Council or Session that could never be induced to sign that bond 
or approve that road, but myself"^ Sir George Mackenzie, who 
had become King^s Advocate in 1 677, has left a defence ' of both 
these unjust and impolitic Acts of the Privy Council, which 
may be accepted by those, but by those alone, who regard the 
Bevolution Settlement as a misfortune to the country. The 
danger of anarchy, such is his argument in brief, was greater 
and more inconvenient than the danger of tyranny, and to avert 
this danger state necessity justified any measures which might 

^ Eirkton's History, Foantamhall'a Observations^ L 177, 3d October 
1677 : ** Whence all this faror came to the Nonconformists seemed strange 
to Bome. It was a politiqae of my Lord Doke Lauderdale and his Dutchesse 
to render himself gracious and acceptable in the hearts of the people and 
regain his lost credit, which undoubtedly was likewise a cause that made 
him listen and give ear to ane indulgence and accommodation with the Pres- 
byterians, for he was serious in it, and did it not merely to cajole and gull 
them. Tlie carriers on of it were tfie President^ Argyle, Mdvilte, and Amision, 
with James Stewart and the ministers of thai party who were allowed freely to 
come to Edinburgh, They offered to raise £15,000, and that presently, for 
my Lord Lauderdale's service, and to contrive the elections so that in Parlia- 
ment he should carry a subsidy and the Parliament get a ratification of what 
he pleased, provyding the Indulgence was secured to them by Act of Parlia- 
ment so that it might not be next day recalled." 

2 Bumet, whose notices of Stair are throughout tinged with malice, says, 
** Lord Stair pretended that by a fall his hand was out of joint, so he signed 
none of these wild orders." — History qf his Own Times, i 419. 

3 Defensio Secreti Consilii coram rege. — Mackenzie's Works, i, 161. 



134 LORD STAIR. 

be requisite. The chief cause, however, of the widespread dis- 
satisfaction with the Government, which he termed anarchy, was 
the refusal to allow freedom of conscience in religion, and the 
consequence of the method taken for its suppression was the 
maintenance, for a brief period, on the throne of Britain of two 
bad kings. In modem times it has been urged that sufficient 
allowance has not been made for the difficulties the Govern- 
ment of Charles n. encountered in Scotland. But the task of 
ruling men is always difficult, though many who aspire to 
it forget the fact, and he who attempts it and fails, or 
succeeds for a time by injustice, whether king or minister, 
must submit to disgrace. Whether the moderate policy Stair 
advocated, if it had been pursued consistently, could have 
staved off revolution, with monarchs such as the last of the 
Stuarts, may be doubted ; but it founded a new dynasty — that 
of constitutional monarchs, when adopted by William of Orange. 

Although Stair failed in his opposition to these imprudent 
measures, he succeeded in procuring some alleviation^ in the 
severity of the orders of the CounciL In particular he carried 
two points : (1.) that there should be specification of time and 
place in indictments for Church disorders ; and (2.) that per- 
sons accused should only be examined as to their own guilt, 
** seeing nothing can be referred to a defender's oath but what 
concerneth himself." For these rules of simple justice in 
criminal proceedings Sharpe declared that Lauderdale had put 
the King's interest further back in one month than could be 
retrieved in seven years. 

While the Privy Council was thus occupied, the Court, 
over whose deliberations Stair exercised a more direct and 
powerful influence, was engaged in a work which attracted less 
notice, but has been of permanent value, the improvement of 
the law. The Court of Session had, like its model, the Parlia- 

^ Apology, p. 5 ; Wodrow, ii. 269 ; Report of Committee for Public 
Afifairs, 5th October 1677. 



A CTS OF SEDER UNT. 1 35 

ment of Paris, claimed and exercised since its foundation a 
gwem-legislative power which, although it was employed chiefly 
with reference to the regulation of its own procedure, was by 
no means confined, as in the present day, within that province. 
Thus amongst the Acts of Sederunt (as the rules agreed on by 
the sederunt or quorum of the Judges are called) of this period 
we find one concerning prisoners for debt, which, on a narra- 
tive of the hardship of requiring imprisoned debtora for small 
sums to obtain a charge from the Court to liberate them, 
allowed the keepers of prisons to do this on a discharge from 
the creditor being produced if the debt was under 200 merks.^ 
The interest of creditors was guarded by another Act, which 
required intimation to be made to them of all suspensions and 
charges to set at liberty, which were still necessary where the 
debt exceeded that sum.^ A practice of granting protections 
from arrest for debt on the pretence that the debtor was cited 
to appear as a witness, which had been much abused, was 
checked by requiring all applications for such protections to be 
accompanied by a declaration under the hand of the party who 
cited the debtor, that he had been really cited and was a 
necessaiy witness.* 

The vacancy, occasioned by the promotion of Sir Archibald 
Primrose to be Justice-General, in the office of Lord Clerk 
Eegister, gave an opportunity for ordering the public registers 
to be arranged and inventoried,* which was done in the course 
of the following year, and on 18th July 1677, there was entered 
in the Books of Sederunt an inventory of the registers of Parlia- 
ment and the Privy Council, of the Acts of Sederunt of the 
Court, and of the writs and decrees recorded in the Books of 
Council and Session, as well as of the charters and sasines, or 
titles to land, and of the various diligences or modes of execu- 

» A. S. 5tli Febniary 1675. « A. S. 26th July 1675. 

a A. S. Ut Febn«ry 1676. * A. S. ,i^S|^ 



136 LORD STAIR. 

tion, arrestment, apprisings, homings, and inhibitions, by which 
the rights of creditors were so carefully adjusted and secured 
under the provisions of the Scotch law. 

This inventory contains the most important parts of the 
fine collection of papers preserved in the Kegister House at 
Edinburgh, stretching back to the commencement of the 
fifteenth century,^ and which, long after the original purpose of 
the deeds as titles has been served, forms valuable material 
for the history of the national institutions and law of Scotland. 
Many of the Sheriffs having failed to obey the directions of the 
Act of 1672 as to keeping minute-books of the register of 
sasines in their several counties, letters of homing were directed 
against them, charging them to meet and compare the register 
of homings, inhibitions, sasines, and reversions in their respec- 
tive shires with the minute-books, under severe penalties.^ 

An Act passed in the same year, 1677,^ against Sollicita- 
tions of the Judges by parties in the cause provided that it 
should be " a relevant reason of declinator against any of the 
Lords Ordinary or Extraordinary that they have received or 
heard any sollicitation or verbal information in the cause during 
the dependence thereof, but upon the first observing that the 
matter offered to be spoken to them did bear or impart any 
sollicitation or verbal information in a cause depending, if they 
did not use all the means they could to stop or withdraw, to 
hear any further thereof, or in case any sollicitation or infor- 
mation in a cause depending be offered by a known letter, if 
they do not present the same to the Lords." All members of 

^ The Register of Charters commences in 1423, that of Acts and Decreets 
in 1455, that of the proceedings of Parliament in 1481. Most of the other 
Registers only go back to the sixteenth century. The earlier records have in 
great part perished. 

Let lis honour the men wbo have gathered up the fragments which 
remain — Sir John Skene, Lord Hailes, Mr. Thomas Thomson, Dr. Josepb 
Robertson, and Professor Innes. 

2 A. S. 4th January 1677. 

^ A. S. 6th November 1677. See further, A. S. 24th December 1679. 



HIS ACTIVITY AS PRESIDENT 137 

the College of Justice were prohibited from soliciting the 
Judges under the pain of deprivation, and severe fines were to 
be inflicted on parties who thus attempted to prevent the 
course of justice. Although the Act did not finally extinguish 
the evil practice, it probably entitles us to treat a few cases in 
which Fountainhall ^ has insinuated Stair himself may have 
been undidy influenced in his judgments as without foundation. 

A useful Act in 1679 regulated the diligence of executor 
creditors, by which a creditor who confirmed or made up a 
title to the deceased debtor's estate was declared liable for the 
recovery of his property and debts due to him, but was allowed 
— in this differing from other executors — to confine his con- 
firmation to a part of the estate sufficient to satisfy lus own 
debt.^ In the following year the admission of notaries and 
the revision of their protocol books by the Lord Clerk Eegister, 
both of which had been neglected during the troubles, were 
restored to their former footing as regulated by the Acts of 
Parliament ; and the clerks of inferior Courts were ordered to 
be examined, sworn, and admitted before the Court of Session.* 

These are only specimens of the active wisdom of the 
Court during the Presidency of Stair, but they may suffice to 
show the watchful eye he kept on all branches of the law ; 
for it was, and still ia, the business of the President of the 
Court to prepare and submit such Acts for the consideration 
of his brethren. The fact that no Parliament sat between 
1673 and 1681, except the Convention of 1678, probably made 

^ Fountainhall, Hktarical Notices, L 17. The Tutors ▼. the Mother of 
Oovan, 23d February 1671 : "The Lords, because they discovered aae in- 
clination in my Lord President towards the tutors, they therefore in a bang 
combined on behalf of the mother only because it was represented to them 
that the President was a friend to the tutors, and carried it over his belly that 
the child should continue with the mother." See also Fountainhairs Re- 
marks on the case of Bishop of DunbUme v. KirUoch of OUmerton^ ibid. i. 107. 
22d June 1672. 

« A. S., 14th November 1679. ' A. S., 22d July 1680. 



138 LORD STAIR. 

this judicial legislation more necessary, and gave it a wider 
scope. 

This Convention, in which Stair as usual sat for Wigton- 
shire, had been summoned by Lauderdale at a time when many 
of his principal opponents were in England,^ and was com- 
pletely in his interest. It voted a supply of £1,800,000 Scots, 
that His Majesty might be the better " enabled to raise more 
forces for securing his ancient kingdom against all foreign in- 
vasion and intestine commotions," but declared, in a letter to 
the King, that as this supply is '' furnished at this time with 
respect only to the present exigents, so this shall not lessen 
forwardness in appearing universally betwixt sixty and sixteen 
with great alacrity and cheerfulness whenever your Majesty 
calls for our assistance." 

In the year 1679 the rebellion, which had been long brew- 
ing in Scotland, burst out ; nor does it seem an unfounded 
conjecture that it had been fomented by the measures of the 
Government,^ which desired to rule Scotland by martial law 
and to have an army at the King's disposal for use, if necessary, 
in England The murder of Archbishop Sharpe at Magus 
Moor,' though accidental in its occasion, had long been looked 
forward to, and twice attempted. It was the prelude to the 
drama of which Loudon Hill and Drumclog,^ where Claverhouse 
was worsted— Bothwell Bridge,^ where the Duke of Monmouth 

^ Laing, iL 81. *' Notwithstanding the prohibition to quit the kingdom 
fourteen peers and fifty gentlemen, of whom Duke Hamilton was threatened, 
and the Earla of Cassilifl and London, Lord Cochrane, and others, were 
charged with lawbnrrows, and denounced outtlaws, repaired to court, and 
were joined in their complaints by Athole and Perth." Ibid. p. 83 : '* The 
absence of his opponents was seized by Lauderdale as an opportune moment 
to summon a Convention of Estates." See Act. ParL yiii 221. 

' '< When I was once sayiog to him," writes Burnet, describing a con- 
versation with Lauderdale, '* was that a time to drive them into a rebellion ? 
' Yes,' said he, ' would to God they would rebel, that so he might bring over 
an army of Irish papists to cut their throats.' " — History of his Own Times, 
i. 341 ; and see Burton's History of Scotland^ vii. 615. 

3 6th May 1679. * Ist June 1679. « 22d June 1679. 



VISITS LONDON TO DEFEND COURT. 139 

routed the Covenanters — and the revolutionary Sanquhar De- 
claration ^ of Cameron and Cargill, were the leading acts.- 

In the summer of 1679, about the very time the civil war 
began in Scotland, Stair went to London by command of the 
King.* The occasion of his visit was the presenting of the 
charges, so long kept back from a hearing, against Lauderdale 
by the Duke of Hamilton, the Marquess of Athole, Sir John 
Cochrane, and other noblemen and gentlemen, with which 
a complaint against the Court of Session was conjoined. 
Charles gave an audience on the 8th and 13th July,* when 
the charges were suppoited by Sir George Lockhart and Sir 
John Cunninghame, and answered by Sir George Mackenzie. 
The principal articles * against Lauderdale were (1) the bring- 
ing of the Highland Host into the West ; (2) the taking of 
free quarters by the soldiery ; (3) the incapacitating persons 
from office within burghs; (4) the bond for making masters 
and landowners c^swerable for their families, servants, and 
tenants ; (5) the taking of lawburrows ; and (6) the im- 
prisoning persons without cause assigned (indidd cavsd). 
What the particular charges against the Court of Session were 
we do not certainly know,' but one appears to have been a 

1 22d Jane 1680. 

^ See the account of these transactions in Burnet, i. 4*J\,et teq. 

8 " The summer Session of 1679, when I attended His Majesty by his own 
command." — Epistle Dedicatory to Stair's Decisions, 

* See in Wodrow, iii. 168, a Letter of 13th July 1679, from one of Lauder- 
dale's party, with an account of the debate. 

fi See Wodrow, iii 168, and in Somers Traeta, 1st ed. viL 200 : *' Some 
further matters of fact relating to the administration of affairs in Scotland 
under the Buke of Lauderdale," which is preceded, p. 195, by ** The Im- 
peachment of the Duke and Dutchess of Lauderdale, with their brother, my 
Loid Hatton, presented to his Majesty by the city of Edinburgh." 

^ In the end of the debate Alexander Munro presented his petition, com- 
plaining that he had been turned out of the clerkship of the Session, and 
this procured by the Duke of Lauderdale and his brother. As to Munro, 
his petition, he was informed, that he had received seven thousand merks of 
composition, and thereupon had demitted his post. — ^Wodrow, iii. 169. 



UO LORD STAIR 

complaint as to the appointment of a new Clerk of Session 
through the influence of Lauderdale. The King, as might have 
been anticipated, declared himself in favour of his minister, 
and, by separate letters addressed to the Privy Council, the 
Lords of Session, and Lords of Justiciary, pronounced himself 
satisfied in all points with the administration of Scotch affairs. 
Stair, in the following letter to his colleagues written from 
Windsor on the last day of the audience,^ congratulates them 
on the success of his defence of the Court : — 

"My Lobds, — I return your Lordships thanks for the 
honour of yours of the 6th of this instant. By his Majestie's 
gracious letter sent herewith you will see I put yoii not in vain 
hopes of his signal favour. I believe you could not wish me 
expect more kindness or confidence from a king than is exprest 
in it ; and by his letter to the Counsell you will perceive what 
tenderness his Majesty hath of the laws of the kingdom, and 
what trust he reposes la the Judges. It were the worst of 
crimes to disappoint his expectation. BiU an the contrair to 
be more and more carefull that, be the speedy and impartial dis- 
tribution of justice, his people may find themselves in securitie 
and quietness, and that their rights and interests are securely 
lodged in your hands. The debates here being now at on end 
I hope we shall be able to see you ere you part, jmd to evidence 
what carefulness and diligence have been used be those of your 
number here for your safety, wherein ye have not wanted my 
moyen and endeavour. — My Lords, your Lordships most faithful 
and most obliged Colleague and Servant, 

" Ja, Dalrymple." 

Stair had probably been in London during the stomiy 
session of the English Parliament which had closed its sittings 
on the 25th of May, and may have been an auditor of the 

1 July 13, 1679. 



SPEECH TO DUKE OF YORK. 141 

violent debates on the resolution^ to bring in a bill " to disable 
the Duke of York to inherit the imperial Crown of England," 
which resulted in the Exclusion Bill, and of the passing of the 
Habeas Corpus Act* on the last day of the Session, which has 
made this Parliament for ever memorable in constitutional 
history. Soon after his return to Scotland, the Duke of York 
was sent there in part to avoid the clamour which had risen 
against him in England, but also, it may be suspected, if neces- 
sary to supersede Lauderdale. On the 24th of November he 
arrived in Edinburgh and took up his residence at Holyrood 
House. Stair had refused^ to allow the Court of Session to 
adjourn to meet him on his way to the capital, on the ground 
that the Session, being instituted by the King and Parliament, 
could not adjourn themselves without their consent, and when, 
at the head of the Court, he waited upon the Duke at Holy- 
rood he addressed him in a speech the outspokenness of which 
can have little pleased the future monarch. He declared it 
was matter of great joy to the nation to see one of the royal 
family among them after being so long deprived of that honour, 
and that the nation, being entirely Protestant, it was the fittest 
place his Eoyal Highness could make his recess to at that 
time.* Although the Duke did his utmost, by entertaining the 
nobility and conciliating the people,^ to earn the favour of the 
Scotch, his presence could not have been acceptable to a nation 
the bulk of which regarded Papists as their natural enemies. 
After a short stay he returned to London in the following 

1 This debate was on Sunday, 4th May 1679. — Christie's Life of ShafUs- 
bury, p. 331. 

' The Habeas Corpus Act passed on 25th May 1679. Stair was in Lon- 
don at least as early as 3d June 1679. — See Fonntainhall, Historical Notices^ 
i. 224. 

3 Somers TracU, Scott's ed., xL p. 661. * Forbes's Preface. 

^ Mr. William Tytler, who had conversed with persons who remembered 
the Duke's stay at Holyrood, reports, " The princesses were easy and affable, 
and the Duke studied to make himself popular amongst all ranks of men."— 
Archceologia Scotica^ L 499, quoted in Chambers's Domestic Annals, ii. 403. 



142 LORD STAIR 

February, whence he retired to Brossels. He came back, how- 
ever, to Scotland in the end of 1680, accompanied by his 
wife, Mary of Modena, and, if we could believe the Court 
Chroniclers, they were received with acclamation by the 
people.* " Nor indeed was there anything wanting to express 
the general joy of all here for the happy arrival of so excellent 
a prince and so dear to this kingdom." Lauderdale had at last 
lost the favour of the King, and Charles gave his brother a 
Commission to hold a Parliament But if the Duke's conduct 
had given hopes of a milder administration, it became soon 
apparent how little this was to be depended on. 

Before the meeting of Parliament, the Privy Council and 
Court of Justiciary were constantly at work. A proclamation 
was issued on the 1st of April against field and other conven- 
ticles, by which heritors within whose lands or houses such 
conventicles were held were enjoined within three days to give 
notice of them to the Sheriff and Magistrate, under a fine of 
a fourth of their valued rent On receiving notice, the Sheriflf 
or Magistrate was to order a Court of heritors to try who were 
at the conventicles, and to fine them whether absent or present 
at the triaL They were further ordered to assist in levying 
these fines under the pain of being themselves liable if they 
did not Beports of their diligence were to be presented to 
the Council yearly in the months of July and December. Full 
power to try before the Council itself or the Justiciary Court 
persons present at conventicles was reserved. 

Nor was the execution of the severe law against conven- 
ticles confined to the ordinary Courts. Military commissions 
were granted to Graham of Claverhouse and other officers, and 
Courts held by them in the southern and western shires. 
Garrisons were quartered in the houses of several of the prin- 
cipal nobility and gentry. Thus no class was free from the 

^ *' A True Narrative of the Beception of their Royal Highnesses at their 
arrival in Scotland." — Pamphlet, Adv. Lib. 



SEVERE MEASURES OF PRIVY COUNCIL Ua 

exactions and oppressions 'of the soldiery. The worst horror^ 
were, however, reserved for the Privy Council and the presence 
of the Duke himself. The torture of the boot and the thumb- 
kins was resorted to to extort confessions on which the 
victims were afterwards tried before the Justiciary Court, and, 
if possible, made to implicate others, for the Segulations of the 
Act of 1G72 were not applicable to the Council. It is related 
by Burnet that, while most men shrank from the sight of the 
torture, " the Duke was so far from withdrawing that he looked 
on all the while with an unmoved indifference, and with an 
attention as if he had been to look upon some curious experi- 
ment." The sufferings of these times have never been for- 
gotten by the people of Scotland. It was very necessary for 
Stair in his Apology, when attacked in the next reign with 
having been a member of the Privy Council, to disown all 
participation in these proceedings ; but his emphatic declara- 
tion, " God knows I had no pleasure in the affairs that were 
then most agitated in the Council," appears justified by the 
facts that he was always regarded by Archbishop Sharpe, Sir 
George Mackenzie, and the party who upheld the unlimited 
exercise of the rojral prerogative, as a supporter of the fanatics, 
that he himself soon fell under the ban of the Council for 
sheltering the persecuted ministers, and that he retained 
through life the good opinion of the Presbyterian clergy. 

In the spring of 1681 the Duke of Bothes, then Lord High 
Chancellor of Scotland, died, and Stair was suggested as his 
successor ; but the influence of the Duke of York,^ who was 
highly offended at him, prevented his appointment. In this 
year he again represented Wigtonshire in Parliament, and was 
one of the Committee of the Articles. The Parliament met on 
28th July, being the first since 1673 — ^the meeting of Estates 
in 1678 having been a Convention merely. 

The King's letter and the Duke's opening speech contained 

* Somers Tracts^ Scott's ed., xi. 551. — Tmiy«rtial Narrative. 



144 LORD STAIR. 

an assurance of the security of the Protestant religion, and 
exhorted the Parliament to take effectual courses "for sup- 
pressing those seditious and rebellious conventicles, from 
whence proceed aU disorder and confusion." 

The first Act passed was one ratifying the former laws for 
the liberty of the Kirk and the security of the Protestant 
religion and of all Acts made against Popery. It had been 
proposed that these last words should be omitted, out of ten- 
derness to the Duke ; but they were restored/ without a vote, 
on the motion of the Earl of Argyle, supported by Sir George 
Lockhart and Stair, although opposed as unnecessary by Sir 
George Mackenzie and the bishops. The second Act was an 
acknowledgment of the right of Succession to the Crown of 
Scotland according to the known degrees of proximity in 
blood, and contained a declaration "that no difference in 
religion, nor no law, nor Act of Parliament made, or to be 
made, can alter or divert the right of succession and lineal 
descent of the Crown to the nearest and lawful heirs." 

After voting a supply to the King — ^which expressly bore 
to be in respect of the danger from conventicles and the 
necessity of increasing the forces to keep them down — an Act, 
against which Lockhart protested as contrary both to the 
divine and common law, by which men were answerable only 
for their own transgressions, was passed on 29th August, 
entitled for Securing the Peace of the Country, by which 
masters were made liable for the fines of their servants, and 
heritors of their tenants, with a right to retain them out of 
their goods. The sevei*e fines already existing were doubled, 
and the King was empowered to name persons as his Com- 
missioners for punishing Conventicles, irregular baptisms, and 
marriages. But the most important of all the statutes of this 
Session was that relating to the Test. This famous Act was 
passed on 30th August, having been hurried through the 

1 Wodrow, iii. 191. 



THE TEST ACT DEBATE, 145 

Committee of the Articles ^ and Parliament on the same day. 
It was proposed, in pretended compliance with a desire ex- 
pressed by many members that something more positive should 
be enacted for the security of the Protestant religion than the 
first Act of the Session. Stair had drawn a bill * for the pur- 

^ Wodrow says, iii. 298, ''When the first Act anent religion was read 
and passed, it appeared very general and insufficient to all members who 
had any regard to the Protestant interest ; and upon the desire of additions, 
or another Act by severals, the Commissioner, in faoe of Parliament, pro- 
mised that full time and opportunity should be given to bring in any other 
Act which should be found necessary to secure the Protestant religion ; 
nevertheless, though many overtures, memorials, and draughts were offered, 
yet they were never allowed to be read before the Lords qf the Articles or 
Parliament ; hut this Test Act toas framed in private, and at length obtruded J' ^ 
It would ap|)ear, however, that the draft of the Act which i>asded had been 
submitted to the Lords of the Articles, for Fountainhall says, " The day the 
Test was voted the Articles sat tiU six at night,'* having apparently met at 
ten in the morning {Decisions, L 250), and the author of the Impartial 
NarraJtwe, Somers Tracts, Scott's edition, zi. 651, states it had been before 
the Articles the morning of the day it was voted in Parliament. 

' In Fountainhall's hss., Advocates' Library, 31. 6. 15, there is the 
draft of an Act '< intended to have been passed in the Scots Parliament held 
in the month of August 1681, for Securitie of the Protestant Religion 
against Poperie and a popish king, but which was then laid asyde, other 
two Acts put in place thereof, and past in that Session of Parliament." 
Fountainhall makes the following observations on this draft, which it appears 
highly probable was the bill proposed by Stair : '' This intended Act for 
Securitie of the Protestant religion would have quieted much better the 
minds of the people than the Acts which were past in the Parliament anent 
religion and the Test, and did contain several clauses more strict than these 
Acts consented to, such as — 1® that the magistraits who should prove imwise 
and slack in putting the laws to execution against the paY)i8t8 should be 
severely fyned and punished ; 2^o that the kings and queens of Scotland, 
immediately on the entry to their government, should take the Coronation 
Oath as it is contained in the 8th Act of James the 6th 2d Parliament in 
1 567 (for the old coronation oath recorded by Balfour in his Practiques, Tit. 
2, of the King, folio 2d, in fine), as it is heir enlarged ; none of which clauses 
are in the Acts that are passed. Yet there were sundry other clauses 
offered and sought for satisfying the loyal Protestants, viz. that it should be 
hy treason in any person to exerce or assume any government or publick 
place without taking the Test, and that the s** cry me of treason should be 
irremissible be the King alone, and should only be pardonable be the 
King and Parliament joyntly ; and if there were no Parliament in being at 

K 



146 LORD STAIR. 

pose, which had been thrown out in Parliament on the previous 
day, and the Act now proposed was truly designed to counter- 
act its pretended object. Its first clause, as it stood when 
brought before the estates, contained no definition of the Pro- 
testant religion, which was intended to be secured ; but Stair 
proposed and carried a statement that it should be described 
as the "religion contained in the Confession of Faith re- 
corded in the first Parliament of James VL,^ which is founded 
on and agreeable to the written word of God." His object in 
this addition was, as he himself expressed it, '' to provide the 
safest hedge against Popery; " for in tibiat Confession Popery 
is distinctly condemned. 

He probably thought that the insertion of this clause 
would either lead to the Act being dropped, or render it 
innocuous. Unfortunately, few of the members of Parliament, 
if we may credit Wodrow, had read the Confession of Faith ; 
and the Duke of York, though in his opinion this addition was 
calculated to ruin all ''honest men," by which term he under- 
stood Papists, preferred to allow the Act to pass with it rather 
than have no test at aU.^ 

There was a keen debate as to the provision in the Act 
which imposed the test on electors and members of Parliamentj 
but this was finally carried. A proposal that there should be 

the King's decease, then the former Parliament members should be empowered 
to reassemble and sit by the space of 6 months till they settled the whoUe 
offices, ecdesiastick, civil, and military, in Protestant hands, etc., according 
to the offers the King made to the Parliament of England in Aprill 1679 
which lie printed besyde me. See more anent this affair in my folio His- 
torick manoscript, marked 9, page 23, and in the 4to manuscript, marked 
A. 5, paginis 86, 87, and 88." 

^ 1567> c. 3 ; to which is appended "The Confession of the Faith and 
Doctrine belieyed and professed by the Protestantes of Scotland, exhibited 
to the Estatis of the same in Parliament, and be their publick votes 
authorized as a doctrine grounded upon the infallible Word of God.*' 

' " So it seems that article of the Protestant religion was forgiven for the 
service that was expected from the other parts of the Test.'* — Burnet, History 
qfhis Own Times, iL 516. 



STAIRS ACT AS TO EXECUTION OF DEEDS. U7 

two tests — one less strict for Presbyterians, another more 
severe for Papists — ^was rejected. So also was an amendment 
of the Earl of Argyle, that the exceptions in favour of the 
£oyal Family should be limited to the Duke of York. The 
same nobleman argued strongly against the proposed oath, 
observing, in language the truth of which would now be imi- 
versally acknowledged, but was then a newly discovwed 
political truth, that '* he was of opinion that as few pvhlic oaths 
should be required as might be, and these as short and dear as 
possible." Another member, the Laird of Gordonstoun, spoke 
in a similar strain, declaring " himself against all penal and 
sanguinary laws in matters of religion — ^that the conscience 
should not be forced, and that these severe sanctions and 
penalties operated nothing save to render men hypocrites." 
The ordinary temper even of intelligent and liberal politicians 
at this period is strikingly shown by the comment of Lord 
Fountainhall on this speech : " So that his design seemed to 
resolve in a latitudinarian toleration and forbearance of all 
religious persuasions."^ At last, notwithstanding the demand 
of many members for delay, the Act passed, " the draught in 
the clerk's hsmds being so much changed and interlined on the 
course of the debates that the far gi'eater part knew not what 
Was in it or what was out of it."' Argyle, Stair, and several 
other members refused to vote. 

The legislation regarding private law was, as usual, a 
brighter side of parliamentary history. 

The most important of the Acts passed in this department 
Was drawn by Stair, and is sometimes called after him. Stair's 
Act.' It still forms the rule of the law of Scotland as to the exe- 
cution of deeds. Proceeding on the preamble that the custom 
introduced when writing was not ordinaiy, by which witnesses 

^ Foimtainhall^B Decisions^ i. 153. 

2 Wodrow, iii. 299. 

» 1681, c. 5, Act. Pari. viii. 242, 



148 LORD STAIR 

whose names were inserted in writs, though not subscribing, 
should prove their authenticity, had produced bad consequences, 
it provided that in future only subscribing witnesses should 
make deeds probative,^ and that all deeds in which the names 
of the writers and witnesses were not designed should be null, 
and their designations should not be supplied by extrinsic 
proof It further enacted that no witness should subscribe 
unless he either knew and saw the party subscribe, or saw or 
heard him give warrant to a notary or notaries to subscribe for 
him, under the penalty of being held accessories to forgery. It 
concluded by applying the general rule that none but subscrib- 
ing witnesses should be probative specifically to all the prin- 
cipal writings known to the law of Scotland, and by declaring 
that in all cases the witnesses should be designed in the body 
of the writ ; otherwise it should be nulL An imfortunate prac- 
tice, now sanctioned by decision, has allowed the testing 
clause in which the witnesses are so designed to be filled up at 
any distance of time after the deed has been executed ; and 
this is perhaps not sufficiently guarded against by the words of 
the Act This Statute, for the time when it was made, may be 
deemed a considerable improvement in the law, but it would 
be expedient that the execution of deeds should now be simpli- 
fied and made uniform throughout the United Kingdom. 

Several other useful Acts of this session must all have passed 
under the cognisance, if not at the instance, of Stair in their pre- 
paration by the Committee of the Articles. By one,* a wife who 
received a provision by her marriage-contract was excluded from 
her terce, unless it was expressly provided she should receive 
it By another,^ the system of Segistration was applied to 
Burgh Sasines and Beversions. A third^ gave the purchaser of 

^ That is, prove themselyeB without the necessity of any extrinsic evi- 
dence as to their authenticity or due execution. 
« 1681, c. 10, Act. Pari viii. 247. 
8 1681, c. 11, Act Pari viii. 248. 
* 1681, c. 17, Act. Pari. viii. 351. 






CONSEQUENCES OF TEST ACT 149 

a bankrupt's lands at a judicial sale right to enter with the 
superior on payment of a year's rent, and regulated the 
procedure at such sales, which were to take place before the 
Coui-t of Session, and formed the ordinary mode of converting 
a bankrupt's lands for payment of his debts, till superseded in 
practice by the sequestration Acts of the present century. A 
fourth^ Act conferred the privilege of summary diligence or 
execution on foreign bills, being the earliest of the series of 
statutes which have given the creditors in these shorthand 
commercial writings shorthand judicial remedies. 

But it may be doubted whether all this benteficial legisla- 
tion atoned for the evil consequences of the Test Act. When 
it came to be considered, it was seen by all parties to be a mass 
of inconsistencies, which neither Papist, Episcopalian, nor Pres- 
byterian could honestly sign. 

This made it, however, in the hands of the Duke of York 
and his advisers, only a more pliable instrument of tyranny, a 
shelter for the lax, and a terror to the upright conscience. 

It received a speedy approval from the King, and was im- 
mediately put in force. Argyle, who declared that he took it 
only in so far as it was consistent with itself ^d the Protestant 
religion, was committed to prison, tried, and condemned to 
death for treason and leasing making,^ but escaped -from the 

1 1681, c 20, Act. Pari. viii. 362. 

^ 12th and 13th December 1681. **The Earl of ArgyU's process took up 
thir two days at the Criminal Courts where the libel is found relevant by the 
Justiciar to infer treason ; and it being proven that he gave in that ex- 
planation which they found treasonable 4th November 1681, the assize being 
BO determined by the interlocutor, could not but find him guilty of treason 
or leasing making ; but assoilzied him from the article of perjury. There 
was a great outcry against the criminal judges for their timorous dishonesty. 
The Marquis of Montrose was Chancellor of the assize. Sir Greorge Lockhart 
called it lucrative treason to the advantage of Church and State, and ad- 
mired how a man could be condemned <u a trcutor for saying lie wiU 
endeavour aU amendment he can to the advantage of Church and State, For 
this is not to conspire in necem et pemiciem reipMlcas" — Fountainhall, Dec, 
i. 166. 



150. LORD STAIR 

Castle of Edinburgh before the day fixed for hLs execution. 
The most momentous state trial in Scotland since Lord Bal- 
merino's, it played a somewhat similar part in the second as 
that had done in the first fall of the Stuart dynasty. 

Stair, warned by the fate impending on Argyle, had fled to 
London, hoping to be admitted to an audience with the King, 
but this was denied him, the Duke of York having sent Colonel 
Graham, his privy-purse bearer, post to Court, to prevent his 
being received.^ Before he arrived a new Commission for the 
Court of Session had been received, in which Sir George Grordon 
of Haddo, afterwards Lord Aberdeen, was named President in 
his stead. He then returned to Scotland, where he lived in 
retirement at his coimtry-seat of Carscreoch, in Galloway, em- 
ploying his leisure in the preparation for publication* of his 
InstUviions of the Law of Scotland, But the contents and 
character of this work require separate consideration. 

^ Somers TVocto, Scott's ed. xL p. 552 : Impartial Narrative. On 2d October 
1681 Sir George Mackenzie of Tarbet, afterwards Lord Clerk Register, writes 
to Lord Aberdeen : — " Mr Lord, — ^The President is gone np and sent his 
excuse to the Duke by Sir John his sonne, ex post facto. The Duke .takes 
this carriage ill, and hath writt up relating to it." — Aberdeen Letters. 

> The royal license for printing the Institutions was obtained on 11th 
April 1681, but the work was probably not published till the autumn. 



CHAPTER VIIL 
1681. 

Pablication of the InstUtUions of the Law qf Scotland at Edinburgh in 1681— Compo- 
position of the Work — Use made in it of the Decisions collected by Stair^ and 
afterwards published— Aim of the Work— Difference in Arrangement of First 
Edition and Second Edition of l&9S—Modtu LUigandi on Forms of Process — 
His position that Rights are the object of Law^ new and important— His Defini- 
tion of Law as Beason versant about the Rights of Men— Rights divided by him 
into Personal Liberty, Dominion, and Obligations— Obligations divided into 
those by Engagements and Obediential Obligations— CriticiBm of this Division — 
How far he follows the Civil Law and the Feudal Law— Treatment of Commer- 
cial Law— Analysis of the Contents of the /iM^ito^iofW— Estimate of its Value — 
Comparison of it vrith the Listitutional Works of Sir Qeorge Mackenzie, Lord 
Bankton, Mr. Erskine, and Mr. Bell. 

The first edition of the " InstUtUiona of the Law of Scotland^ 
deduced from its OriginalB, and collated with the Civil, Canon 
and Feudal Laws, and with the Customs of neighbouring Na- 
tions," w£^ published at Edinburgh in 1681, when Stair had 
quitted the oflRce of President, but before his retreat to Holland.-^ 
His contract with Anderson, the printer, dated 26th March 
1681, has been preserved by Dallas of St Martin's as a style 
for copyright contracts.* The work had probably existed in 
manuscript for some time. Indeed of the last part, which 
treats of the form of process observed before the Lords of 
Council and Session in Scotland, and is published with a 

^ He Bays, indeed, in the preface to the second edition, " The former 
edition was printed when I was absent ;" but this must mean only absent 
from Edinburgh, for, in a letter to Lord Queenaberry, dated 1st July 1682, 
he mentions having sent him a copy of the work. 

' As it is probably one of the earliest existing in Scotland, I have printed 
it at the dose of this chapter. 



152 LORD STAIR 

separate title-page, there is a ub} in the Advocates' Library 
which bears the date 1667. The Decisions, which were in- 
cluded in the same contract with the printer, but were not 
published for some years, had been written out daily during his 
twenty years on the bench, and are copiously used throughout 
his Institutions to confirm or qualify his positions. " I have 
omitted," he says in the preface to the second edition, "no 
material decisions of the Lord3 that I found, especially wJiere 
they were contrary and seemed iriconsistent, tha^ judges might not 
he overruled by adducing some decisions where others about the 
same time were opposite" In his dedication to Charles li., with 
the tempered modesty of conscious merit, he observes, — " It is 
but little short of forty years since I have followed the study 
and practice of law constantly and diligently, so that those who 
will not deny me reason and capacity can hardly deny my 
knowledge and experience on the subject I write o£ My 

^ The author of the Impartial AccourU qfwme of the TroMOcUons in Scot- 
land, eta, published in 1695, who seemB to have had private sources of infor- 
mation, says, — "Then {Le. 1664) it was he began to compose a system of Ui^ 
civil law, ifUernuxt vnth the law qf ScoUand, and practices and precedents of 
that sovereign Court which makes the law intelligible and known to all the 
king's subjects there who can read English." — Somers Tracts, Scott's ed. xi. 
5r)0. In the mss., Advocates' Library, 25. 7. 9, is a volume containing — 

(1.) The form of process, or the order of proceeding of legal actions and 

affaires in session at Edinburgh. By the Right Honourable my 

Lord of Staires, President thereof, anno 1667. 
(2.) A Compend or Breviarie of the most substantial points relating to 

the Law, extracted forth of the bookes of the learned jurisconsult 

D. T. C. Treating upon the Feudal Law. 
Stair was not President until 1671, so the MS., which is written in a neat 
and distinct hand, must be of later date. The form of process is substan- 
tially the same as the Modus LUigandi, published as the third part of the let 
edition of the Institutes, with this distinction, that there is no reference in it 
to the Act of the Regulations, which is frequentiy referred to in the Modus 
Litigandi. This Act was sanctioned by Parliament in 1672 ; but there had 
been a previous interim Report of the Commission sanctioned by Act of 
Sederunt in 1670, to which also there is no reference in the ms. Hence it 
follows that the ms. must have been composed prior to 1670, and I am dis- 
posed to believe it a copy of an earlier mb. dated 1667> perhaps written by 
Stair himself, but copied after he became President without alteration. 



SCOPE OF HIS ''INSTITUTIONS," 153 

modesty did not pennit me to publish it, lest it should be 
judicially cited where I sat. But now, becoming old, I have 
been prevailed with to print it while I might oversee the press. 
It was not vanity and ambition that set me on work ; but 
being so long a servant to God and your Majesty in the matter 
of justice, I thought it my duty not to smother my thoughts 
of the immaculate righteousness of God Almighty in his moral 
law, and of the justness and fitness of your Majesty's laws, that 
I might promote your honour and service, and the good of your 
subjects." 

The title of the book bore witness to the high aim of its 
author. It was not, aa most law books in this country, a 
mere compendium of existing municipal law. It was a deduc- 
tion of that law from its original sources. "The historical 
part," he says, ''relating to the helps and impediments for 
clearing and securing the rights of men out of the Word of 
God, the moral and judicial law contained therein, the civil, 
canon, and feudal laws, and many customs of the neighbouring 
nations digested as they faU in with the common rules of jus- 
tice, may probably be acceptable to those who may and will 
allow time for its perusal" 

And it was, in addition, an essay in comparative juris- 
prudence, before that name had been given to the branch 
of this science which treats of what is common and what 
peculiar in the laws of different countries. The uses of this 
study both to the general jurist and the municipal practitioner 
have seldom been better expressed thsui in the words of Stair : 
** A great part of what is here offered is common to most civil 
nations, and is not likely to be displeasing to the judicious and 
sober anywhere, who doat, not so much on their own customs, 
as to think that none else are worthy of their notice." " No 
man," he adds in another place, "can be a knowing lawyer in 
any nation who hath not well pondered and digested in his 
mind the common law of the world, from whence the interpre- 



154 LORD STAIR 

tation, extension, and limitations of all statutes and customs 
must be brought"* 

The method of the treatise was original In the first 
edition it was divided into three parts. The first dealt with 
the constitution and nature of rights ; the second with their 
conveyance or translation from one person to another, whether 
among the living {inter vivos) or from the dead (mortis catisd); 
the third of the cognition (or enforcement) of rights by judicial 
process and execution, but the Modus Litigandi which forms 
this part is evidently only a sketch of what Stair deemed 
should be included in it. 

The same method is substantially retained in the second 
edition, published in 1693,^ with the variation that he divided 
the first part into two, and thus made four books, treating — 

1. Original Personal Eighta 

2. Original Beal Eights. 

3. Conveyance or Transmission of both. 

4. Cognition and Execution of the whole. 

The fourth book is a great expansion of the Modus Litigandi^ 
and is in effect a treatise on procedure, evidence and dili- 
gence, or the forms of executing legal process. 

The changes in other parts chiefly consist of sub-divisions 
of several of the chapters, and careful revision of the whole, 
with some slight additions ; but there is no alteration in the 
conception or phraseology of the work. 

The new arrangement in four books was made partly to 
follow the form of Justinian's Institutes, but principally because 

* Inst, i, 1. 

* ** In aU which there ib no material change from what was in the first 
edition as things then stood, so that it will still be useful, and the titles may 
be cited either by that or this edition. Though, indeed, this edition be in a 
great part new, by occasion of new Statutes of Parliament^ Acts of Sederunt, 
and Decisions since the treatise was written, and by an entire addition to the 
fourth part, which was resolved and expressed to be added ; and yet it is 
stiU the same treatise, and therefore I thought it not proper to give it a new 
dedication."— -Prg/bce to Secorul Edidon, 



RIGHTS THE PROPER OBJECT OF LAW. 155 

" there is an eminent distinction^ in our law betwixt heritable 
rights of that ground and moveable rights." 

An important advance was made in jurisprudence by the 
position which Stair postulates at the commencement of his 
treatise, that rights are the proper object of law. In this he 
advisedly deviates from the system of the Soman law, accord- 
ing to which persons, things, and actions were the object of 
law. " Omne jus quo utimur," writes Gains, who more than 
Justinian or Tribonian was the true founder of that law, 
so far as that title can be given to any one man, '' vel ad 
personas vel ad res vel ad actiones pertinet." This division 
of law was due to the social relations which prevailed both 
when Gains wrote smd when the Institutes of Justinian were 
compiled,^ and to the legal consequences of these relations. 
Bights of status, and, in particular, the rights of husband 
and wife, parent and child, master, slave, and freedman, 
aflfected all other departments of law ; the law of property, the 
law of obligations, and the law of actions, as they existed in 
Eoman jurisprudence, could not be properly imderstood with- 
out a preliminary consideration of the law relating to persons.' 
Stair's criticism on this classification is that persons, things, 

^ This distinctioii, due to the Feudal Law, has already been mncli nar- 
rowed, and is destined probably to be entirely removed. Every step taken 
in that direction renders modem law more similar to the Roman law, in 
which this distinction was unknown. 

3 Gaios wrote in the reign of Antoninus Pius, a.d. 138-161. The Insti- 
tutes of Justinian were composed by Tribonian, Theophilus, and Dorotheus, 
A.D. 630. 

3 See on this subject Maine's Ancient Law, 168, et seq, : ** Starting as 
from one terminus of history from a condition of society in which aU the 
relations of persons are summed up in the relations of famUy, we seem to 
have steadily moved towards a phase of social order in which aU these rela- 
tions arise from the free agreement of the individual ; . . . the movement 
of the progressive societies has hitherto been a movement from StcUua to Con- 
trcteU^* Mr. McLennan and other writers have, however, shown that there 
was an earlier stage when the family relation as it appears in the Roman law 
was unknown. 



156 LORD STAIR 

and actions are only the extrinsic object and matter with 
which law and rights are versant.^ In other words, the direct 
or intrinsic object of law is rights, or, to use his own pregnant 
definition, " Law is reason itself as rr is versant about the 
RIGHTS OF MAN."* In truth, however, as the analysis^ of the 
modem German jurists has shown, every legal right involves 
each of these three elements, a person who is entitled to the 
right, a thing (either a particular piece of property, or a claim 
upon the property, or to an act or forbearance of another per- 
son), which is the subject-matter of the right, and an action 
which is the means the law aflfords for the protection of property 
or the enforcement of claims. But while the Soman system may 
be defended by and easily adapted to this analysis, it would be 
an anachronism to suppose the Soman jurists had it in view. 
Stair, on the other hand, without explicitly stating it, very clearly 
recognises it. " A right," he says, " is a power given by the 
law of disposing of things, or exacting (rojii persons that which 
they are due,"* and " an action is a prosecution by any party 
of their right in order to a judicial determination thereof."* 

His division of rights into personal liberty, dominion or 
rights of property, and obligations, i.e, the personal rights to 
which obligations are correlative, is substantially that of most 
modem legal systems, and is as accurate as it is simple. 

1 Inst. i. 1. 23. 2 InH. L 1. 17. 

' This analysis is by many persons in this country attributed to Attstin, 
but that author had learned it from the Germans, and although it well 
suited the analytic yein of the disciple of Bentham, it has nothing to do 
with the utilitarian philosophy. It may be found in Kant ; but I do not 
remember to have seen it stated in any of the writings of Bentham himself, 
though it would be natural to expect it. 

* Inst. i. 1. 23. The Boman law taketh up for its object persons, things, 
and actions, and according to these orders itself ; but these are only the 
intrinsic object and matter about which law and right are versant. But the 
proper object is the right itself, whether it concerns persons, things, or 
actions, and according to the several rights and their natural order ought to 
be the order of jurisprudence. 

« Inst. iv. 3. 20. 



DIVISION' OF OBLIGATIONS. 157 

On the other hand, his divisions of obligations, which he 
considers in the light of restraints on personal liberty, into 
those which arise from obedience — by which he means obe- 
dience to God — and those which arise from engagement, is 
peculiar ; and though it is repeated by Erskine, and has been 
occasionally used by Scotch lawyers since, does not appear to 
be satisfactory. Under the former, or obediential obligations, 
Stair classes two distinct kinds of rights : (1) those rights 
which are now commonly said to belong to or arise from the 
personal and domestic relations — the rights of husband and 
wife, parent and child, guardian and ward ; and (2) those 
rights which the Boman lawyers said arise from Quasi Contract 
Delict and Quasi Delict, and which Stair very conveniently 
subdivides into the rights of Kecompence, Separation, and 
Bestitution. It is indeed true that all these various kinds of 
rights, with the partial exception of certain rights arising from 
the relations of husband and wife, and guardian and ward, 
are rights independent of express engagement or consent of 
the persons subject to the relative obligations ; and it is useful 
to direct attention to this fact. But it is not true that such 
rights are distinguished from other rights in being based in a 
peculiar manner on obedience to God. All rights, both those 
arising with the consent, and those arising without the consent 
of the persons subject to the obligations, are founded on the will 
or law of the Supreme Buler ; and it is an error to suppose that 
the obligation to repair an injury is so founded in any other or 
higher sense than the obligation to perform a promise or fulfil 
a contract. The real state of the case appears to be that the 
former class of those obligations, which Stair styles obediential, 
are the result of the implied consent of the persons who enter 
into the relations in which they arise. The husband and wife, 
by marriage — the guardian, by the acceptance of his office — the 
parent, by causing the birth of the child — tacitly consent to 
all the obligations which the law imposes on the persons who 



158 LORD STAIR 

assume these relations^ just as the law, in many less complex 
relations, implies obligations to which the contracting parties 
do not explicitly consent ; as for instance, a warranty of fitness 
of the subject sold for the purpose for which it is sold, is 
implied in sale, though not expressed. 

On the other hand, in the latter class of so-called obediential 
obligations, Becompence, Beparation, Bestitution, there is no 
consent, either express or implied; but the law, in certain cases, 
imposes, contrary to, or at all events without the consent of 
the person subject to it, the obligation to recompense a benefit, 
to repair an injury, to restore what is not his own. 

It follows that the true division of obligations in a treatise 
on Municipal Law is not into those which aiise from obedience 
and those which arise fix)m engagement, but into those which 
arise with the consent of the persons subject to the obligations, 
which may be either express or implied, and those which arise 
without their consent by law. 

It is, of course, not inconsistent with this view, that ante- 
cedent to, or independent of, any particular human law God 
had revealed, or reason, the highest faculty of man, had recog- 
nised, certain rights as necessary. The ascertainment of what 
these necessary rights are is the proper province of the 
Philosophy of Law. 

When we pass from Stair's general divisions to his treat- 
ment of particular subjects, what is chiefly to be remarked is 
the different bulk and relative importance of the commercial 
branches of the law at the time he wrote and in the present 
day. Thus Bills of Exchange are only treated incidentally 
under the title of loan or mutuum.^ Trust,^ one of the most 
important departments of modern law, in the same manner, is 
considered as a subordinate species of mandate, and it is ob- 
servable that, like mandate, it was capable of being proved by 
witnesses imtil the Act 1696, c. 25, restricted tlie proof to writ 

^ Inst. I 11. 7. ^ List, I 12. 17. 



HOW FAR HE FOLLOWS THE CIVIL LAW. 159 

or oath — a restriction which probably ought now to be re- 
moved. The Contract of Partnership is treated in one of the 
briefest chapters under the name of Society. Insurance is 
only once mentioned as an unusual contract '* where money or 
things are given for the hazard of anything that is in danger, 
whether it be goods or persons." In short, although com- 
merce in Scotland was beginning to spread its wings, its more 
complex contracts and usages were known only as forms of 
the simpler contracts between man and man, and did not 
occupy separate places in the scheme of jurisprudence.^ 

In this part of his work, as well as in that which treats 
of Bestitution, Separation, and Becompence, Stair follows 
closely the civil law of Home. He uses its nomenclature, as 
Mutuum, Commodatum, Mandate, Depositum, Emption, Ven- 
dition, Location and Conduction, Acceptilation, Compensation, 
Setention, Innovation, Confusion. Under Bestitution he treats 
of Indebitum Solutum, Bona Fide Consumption, the Actiones 
Familise ErciscunddB, Communi Dividundo, and Finium 
Eegundorum; under Becompence, of Negotiorum gestio, the 
Actio de in rem verso, and the Lex Bhodia de jactu ; under 
Eeparation, of Vis et Metus, the Edict of the Praetor de 
dolo malo, and the Actiones Bedhibitoria, Qaanti Minoris 
and Pauliana. In almost every case, however, he gives 
equivalents for auch terms in the vulgar tongue, and is careful 
to point out that the Boman law is of no authority in Scotland, 
but is received only on account of its equity and expediency, 
and where there is no positive law or settled custom.* This 

^ But while this circumstance deprives this portion of the Institutions 
of value as a. detailed statement of the law, it has the advantage of fixing 
the eye on the elements out of which the more complicated legal relations of 
modem society have grown, and into which they may be resolved. 

' JnsL L 1. 16 : " Our customs, as they have arisen mainly from eq^iity, 
so they are also from the civil, canon, and feudal laws, from which the 
terms, tenor, and forms of them are much borrowed, and therefore these, 
especially the civil law, have great weight with us, namely in cases where a 



160 LORD STAIR. 

use of Soman phraseology by its chief classic, who has been 
followed by his successors, has preserved it in Scotch law 
down to the present day, and given it what English lawyers 
unacquainted with the civil law, sometimes consider a bar- 
barous aspect. 

In the Second Book, where he treats of Eights Real or 
Dominion, the opening chapter on Community, Possession, 
and Property, continues in the traces of the Boman law, 
especially in dealing with Possession and the Acquisition of 
Property by the various modes of Appropriation Occupation, 
Accession Alluvion in immoveable, and Commixtion Con- 
junction and Contexture in moveable subjects. As soon, how- 
ever, as he passes to Real Property, the feudal instead of the 
civil law becomes the basis of his treatise. He notices, in- 
deed, the few instances in which the feudal system had not 
laid its strong hand on Scotch land rights, the udal or allodial 
tenure,^ and the vestiges of the original community of property 
in the common use of ways and passages both by land and 
water and the property of the sea- shore; but, practically, the 
whole land of Scotland, when he wrote, was subject to a uniform 
system of feudal tenure stretching from the sovereign, in whom 
was all land not specially granted, as well as the superiority 
of all land granted through a chain of vassals, to the last sub- 
vassal, who was the actual dominus, or proprietor, of the por- 
tion of land contained in his grant; though, according to 
feudal theory, each superior retained a reserved right called 
dominium directum, which might at any time become full 
property, if the vassal neglected or while he was incompetent 
to fulfil his obligations. Although Stair's remark is probably 
true, that the details and practical application of this theory 

custom is not yet formed. But none of these haTe, with us, the authority 
of law, and therefore are only received according to their equity and ex- 
pediency — secimdum bouum et aequum.*' 
* Inst, ii. 1. 5. 



FEUDAL LAW. 161 

had not been settled till the institution of the Court of Session, 
whose decisions reduced to uniformity the diversities of 
different parts of the kingdom, its principles had been accepted 
at least since the reign of Malcolm Canmore, and the absence 
of particular customs in Scotland (such as Copyhold,^ Borough 
English and Gavelkind, in England), and the retention, except 
in the case of burgage tenure, of Subinfeudation (abolished 
in England by the statute Quia Emptores), and of a system of 
jurisdiction both in Parliament and the Courts of the Lords 
of Begality and Barons, founded on the relation of superior 
and vassal,^ rendered Scotch feudalism singularly complete.' 
Stair first treats of infeftment or sasine, the act of investiture, 
accompanied by symbolical delivery, by which the superior 
transferred possession to the vassal This gives him occasion 
to explain the nature of Charters, both original and by pro- 
gress, whether upon Besignation, or by Confirmation, or by 
Apprising or Adjudication, along with some of the principal 
clauses of Charters, the Dispositive, the Precept of Sasine, the 
Tenendas, and the Kovodamus. He then notices the Instru- 
ment of Sasine, first introduced by James i. in 1430, after his 
return &om England, before which the symbolical delivery of 
possession completed the vassal's right without a written instru- 
ment recording it ; and the system of Begistration of such In- 

^ Analogous, however, to the English Copyhold is the Booking Tenure of 
Paisley and that of the kindly Tenants or RentaUera of Lochmaben, but the 
limited local extent of such customs only shows, more strikingly than their 
total absence would have done, the uniformity of the Scotch land law. 

' ii. 3. 2. " No nation is more exact in this than Scotland, wherein the 
king, as supreme superior, mleth by his vassals assembled in Parliament* 
So also superiors have their Courts consisting of those vassals who are 
obliged to answer suit thereto, who, as a jury, gave doom and judgment of 
old, when all matters proceeded by jury or inquest.'' 

' **The Scottish Parliament most have been the purest piece of feudalism 
in the world ; more so than the States-General, and more so even than the 
Aragonese Cortes." I quote this from a letter of Professor W. Stubbs of 
Oxford, a high authority on such a point. No wonder, then, the law this 
Parliament made is stamped deeply with a feudal impress. 

L 



162 LORD STAIR, 

struments introduced by "that excellent Statute 1617, c. 16," 
in connexion with which he makes a slight digr&ssion to 
mention the other statutes requiring registration of Adjudica- 
tions,^ Inhibitions,* and Homings.* 

After distinguishing base Infeftments, where the vassal holds 
of the immediate granter, and has not been received by con- 
firmation or on resignation or by adjudication by the grantei^s 
superior from public Infeftments, where he has been so re- 
ceived or entered, he proceeds to explain the five forms of 
tenure known in Scotland, — ^Ward, the original feudal or proper 
military tenure, similar to the English knight's service ; Blench, 
the tenure in which nominal service took the place of military; 
Mortification, Burgage, and Feu-farm, the three tenures by 
which the Church, the Burgh, and the Agricultural Tenant 
modified, while they imitated, the strict feudal forms, and 
adapted them to the progress of civilisation. 

He then treats of conjunct infeftments, where more than 
one person hold the property jointly ; and of tailzies or destina- 
tions, where certain heirs are nominated and accepted by the 
superior in succession to the origuial vassaL He concludes 
this chapter with a consideration of the most ordinary and im- 
portant clauses in infeftments, the union of various parcels of 
land into one tenement, their erection into a barony, warran- 
dice, reservations, provisions, conditions, and clauses irritant. 

In connexion with the last of these, he mentions the debate 
of the feudists, whether such clauses were lawftd, and in his 
second edition its resolution in the affirmative by the Act 1685, 
c. 22, and his own adverse opinion, founded, not on the technical 
feudal ground that they are inconsistent with the right of pro- 
perty, but on those reasons of common sense which have since 
led to the relaxation of strict entail, and prepared the way for 
its total abolition. "Clauses de non alienando or non con- 
trahendo debitum are most unfavourable and inconvenient, 

1 1661, c. 31, »nd 1672, c. 19. * 1581, c. 119. » 1579, c. 76. 



HIS OPINION AS TO ENTAILS 163 

especially when absolute ; for, first, commerce is thereby 
hindered, which is the common interest of all mankind ; 
secondly, the natural obligations of providing wives and 
children are thereby hindered, which cannot lawfully be 
omitted; thirdly, it is unreasonable so to clog estates de- 
scending firom predecessors, and not to leave our successors in 
the same freedom that our predecessors left us, whereby, though 
they have the shadow of an estate, yet they may become 
miserable;"* although he allows such entails to be more 
tolerable where the lands have been acquired by the entailer. 
The chapter ends with an account of the Begalia, distinguished 
into those always reserved and those carried by implication on 
the grant of a barony, and requiring express words where there 
is no such grant, and of what is comprehended under Part 
and Pertinent. 

After treating of the right of superiority as correlative to 
that which the vassal acquires by infefbment, and its various 
casualties or incidents. Stair proceeds to consider, in a series of 
chapters, the different classes of real rights, which are less of 
more limited than the full right of property or dominion. 

1. Liferent infeftments, including conjunct fees, terces, and 
liferents by the courtesy, which correspond in the feudal to the 
personal servitudes of the civil law. 

2. Beal servitudes, which are in part the same as in the 
civil law, as those relating to water, light, and passage, and in 
part derived from the feudal law or custom, as pasturage and 
the onerous servitude of Thirlage,' by which the servient tene- 

1 Inst. ii. 3. 68. Cf. iv. 18. 6. 

* The hietorical origin of the Scotch thirlage is uncertain. The word 
multure (mouture) points to France, and it was in that country that the 
oppressive rights of the seigneur (droit de banality) had the widest extent 
and longest existence. On the other hand, the word thirlage itself, the 
terms sucken, knaveship, and the distinction of in-town and out-town 
multures, indicate rather a Saxon or Scandinavian origin, and there are 
notices of the right in some of our earliest laws (see Balfour's Praciics^ p. 493 



164 LORD STAIR 

ment was bound to send its grain to the mill of the 
dominant. 

3. Teinds, or tithes, of which his account is peculiarly 
valuable for its historical information and the knowledge 
derived from his acting on the Commission of Teinds. 

4« Tacks, or leases, which became a real right by the 
Statute 1449, c. 18, contrary to the rule of the civil law;^ 
and — 

5. Wadsets or mortgages of land in security for debt 

The second Book concludes with an account of the various 

< 

modes by which real rights of property or infeftments may be 
extinguished, whether with consent of the vassal in Resignation 
to the superior (called ad remanentiam), or by law as in Recog- 
nition^ Purpresture, and Disclamation; to which is added a 
separate and important chapter on Prescription treated by itself, 
because it is a mode of extinguishing other rights as well as 
real rights. This subject is discussed with great subtlety ; the 
disquisition in it on bona fdes well deserves to be studied by 
all lawyers, and the exposition of the various statutes intro- 
ducing the different prescriptions by all Scotch lawyers. 

The third Book relates to the Conveyance or Transmission 
of Rights, — that branch of law which is known in modem 
practice as Conveyancing; and it t^rould be well if modem 
professors of this branch of law confined themselves to their 
proper limits, amd followed the lueid division of it which Stair 
lays down. He treats successively (1) of the transmission, 
amongst the living, of Personal Rights by Assignation; (2) 

et «eg.), which prove its ezistence before French influence had begun to 
operate. Probably the explanation is that it was a common feudal institution 
existing in Scotland as in other feudal countries, but which received greater 
definiteness and tenacity in Scotland in consequence of the French connexion. 
It is singular that there is little trace of it in England. — See on this sub- 
ject Ross's Lectures, iL 169. 

^ By that law, sale by the landlord or lessor terminated the right of the 
tenant or lessee under him — as the German proverb expresses it, Kauf bricht 
Mieth, 



THIRD BOOK ON CONVEYANCING. 165 

of Eeal Rights by Disposition ; and (3) of both by Confisca- 
tion or Forfeiture ; then of the transmission from the dead to 
the living, which in Seal rights is by heirs, and in the succes- 
sion to Moveable rights is by executors or next of kin. 

Under the head of Succession he discusses the various 
classes of heirs : Heirs of line, or by course of law ; heirs 
of tailzie and provision, who cut that line by the provision of 
the proprietor ; and heirs of conquest, who succeed in Feuda 
Nova, a name by which the feudal law designated edl lands not 
acquired by the deceased proprietor by way of succession as 
heir, but by purchase or by gift He also treats, under this 
title, of the various modes by which an heir incurs a passive 
title and makes up an active title to land ; and, in particular, 
of the Brieves of Service, which or an equivalent, the law of 
Scotland, like the ancient, and unlike the modem English law, 
requires to complete the heii^s title in feudal subjects. In 
consequence of Stands full treatment of this subject, his con- 
temporary, Dallas of St Martins, the earliest Scotch writer 
on Conveyancing, omits it " Being informed," he says, " that 
James, Viscount of Stair, that great and learned lawyer and 
President of the Session, had undertaken that task (how to 
answer all parts of the brief), and actually did perform his 
design (which I see before printing of my present Stiles), I 
omit what I proposed to myself in that, and refer you to his 
Lordship's late InstitiUions, pages 467, 468, 469 (and look his 
Index), wherein ye will find their various kinds, natures, and 
manners of proceeding therein very fully and lively digested, 
and wherein he shews himself not only a Lawer, but a great 
Formalist and Stylist (as if bred Writer to the Signet), and 
sure not without (if not with) the greatest pains and search 
of and prying in these matters. Arid in evidence of his ardent 
desire to he versed in all matters he had from me the first part 
of my system of Stiles called Real and Personal Diligence, and 
my third part being Sfumm/mds, passing the Signet, the first 



166 LORD STAIR, 

whereof he kept eight months, the other four or five months, and 
returned them without amendments, and his revising of them 
in more esteem with me than the sending." ^ 

The Stiles of Dallas were published in 1697, after Stair's 
death ; so the above passage was no mere compliment to the 
head of the Court, and affords a strong testimony to the assi- 
duity of Stair in every part, even the least interesting, of his 
undertaking. 

There follows a more complete discussion of the so-called 
passive title or gestio pro hccrede, by which an heir who has 
not made np his title in the formal manner required by law, 
but has intermeddled with the land of the deceased, is liable 
for his debts and obligations. The third Book ends with two 
chapters on Executry, where testaments or wills are treated 
with great minuteness, and Vitious Intromission, which is the 
passive title in moveable succession. 

The fourth Book is a peculiarly valuable portion of the 
treatise. It commences with a chapter on the Authority of 
the Lords of Session, which traces historically the origin of 
the Couiii from the Session of James i., through the Daily 
Council of James iv., to its institution by James v. in 1532,^ 
then explains its jurisdiction both as an originsd and appellate 
Court, declaring, as might be anticipated from the part we 
have seen Stair took in the great controversy on the subject, 
against the Competency of Appeals from it to Parliament 
except in cases of excess of jurisdiction, and concludes with 
an account of the powers and duties of the Quorum of the 
whole Court, and of the Lords Ordinary who sat singly in 
the Outer House. 

In the second chapter the Order of Discussing Processes 

^ See also the continuation of this passage, Dallas, j>p. 886 and 894, for 
further notices of Stair's work. 

^ Stair shared the common error of supposing the date of the foundation 
of the Court to be 1537. The true date is 1532. See Act. Pari. ii. 335, and 
Erskine, i. 3. 12. 



FOURTH BOOK ON PROCEDURE. 16T 

is treated with that attention to miantiae which the lawyer 
knows to be necessary for the proper conduct of business, and 
which must have made it a useful guide to the practitioner of 
the time when it was written, though it is now, for the most 
part, obsolete. He here points out the various improvements 
introduced in procedure in his time to the advantage of the 
parties, but which, as with a slight touch of querulousness, he 
observes, added greatly to the burdens of the Lords. Having 
in view, doubtless, the attacks so freely made on the Court, 
he appeals confidently to his account of its procedure as show- 
ing '' that if it be compared with the Supreme Courts that 
have been or are in other nations, there will be found no 
reason to repent or be ashamed of that great deference that this 
nation hath always had to the Session since the institution of 
the CoUege of Justice, and that they are not the lest friends to 
the nation who wovM diminish or derogate from the authority 
or humour thereof ^ 

In the third chapter he passes to the Application of Justice 
by Judgment. He observes that he treats only of the Supreme 
Court, but points out in a passage which has not lost its appli> 
cation in the present day : " It would be of great advantage 
to the nation that all who attend the inferior judicatures were 
first advocates who, for a considerable time, had attended the 
house and practised ; which would be a great means to keep 
aU the Courts, Superior and Inferior, imiform for preventing 
the trouble and expenses of the lieges ; and where the inferior 
magistrates do not themselves ordinarily attend, they might elect 
their deputes of such. This wovM also incourage the study of 
law, to which many of our youth are inclinable^ whereby they 
arise to a greater number than that the affairs of the nation can 
afford suitable provisions to their spirits and parts!' 

He remarks that the main distinction between the Supreme 
and Inferior Courts is the existence of an equitable jurisdiction 
in the former, the nature of which he explains by comparison 



168 LORD STAIR 

with that of the English Chancellor and that of the Soman 
Praetor, and by stating the various points in which it is exercised. 

He then treats of the di£ferent forms and divisions of 
brieves introduced by James i., from the practice of the English 
Chancery, and of the division of actions into solemn and 
summary, and concludes with an epitome of the chief divisions 
and classes of actions according to the Boman and the Scotch 
law respectively. 

The chief division of actions according to the Scotch law, 
he remarks, is into declaratory, petitory, and possessory, and he 
proceeds to discuss consecutively the various kinds of declara- 
tory, petitory, and possessory actions. Under each of these 
divisions he follows the order of the rights contained in the 
former books of his Treatisa Thus, under Declarators, he 
treats — 1. Declarators relative to property, the redemption 
of property, and the trust of property ; 2, Declarators rela- 
tive to superiority, which comprise the declarator of the for- 
feiture or tinsel of the superior's right, and declarators of 
the various casualties of the superior, to which are appended 
the declarator of bastardy, and of the King^s right as vitimus 
hasres; 3. Declarators of Servitudes, including astrictions in 
the law of thirlage ; 4. Actions to compel the Pursuer to Insist 
and Multiplepoindings, both of which are declaratory actions 
relative to moveables. 

In connexion with Declarators, he devotes a special chapter 
to Beductions, which are negative declarators, by means of 
which pretended rights are annulled. 

In regard to this peculiar form of declaratory actions, he ob- 
serves that it was '' invcAted and sustained since the erection of 
the College of Justice, and is a more absolute security of man's 
rights than any form of process in the Boman law, or in any 
neighbouring nation," a commendation which has been echoed 
since by English lawyers not disposed to find merits in the 
Scotch system of procedure. 



HIS DIVISION OF ACTIONS. 169 

Petitory actions are next treated, being those in which some- 
thing is demanded to be decerned by the judge to " be done by 
the defenders, which doth not arise from possession," both those 
arising from real and those arising from personal rights. 

Possessory actions foUow where the division of. real and 
personal rights is again used, — the possessory actions arising 
from real rights being removings, molestations (the actio finium 
regundorum of the Boman law), ejection and intrusion (the 
successor of the writ of disseisin of the Feudal law) both of 
which last have in modem practice given place to interdicts. 
The possessory actions arising from moveable rights are 
spuilzies and wrongous intromissions. 

The three preceding classes of actions are principal actions, 
and the accessory or incidental actions are next passed in re- 
view. These are Transcripts for taking copies of deeds, Provings 
of the Tenor for establishing the contents of lost deeds. Exhibi- 
tions for inspection of deeds, both by the heir for the purpose 
of determining whether he shall complete his title and by the 
litigant for the purpose of probation. Transferences where 
new pursuers and defenders have to be introduced into the 
record, and Wakenings where actions have fallen asleep, as by a 
curious figure (similar to that of the Boman law of actio naia), 
the Scotch law designated those in which no proceedings had 
been taken for a year. Most of these accessory actions have now 
been dispensed with, and the shorter and more convenient form 
of motions in the original cause substituted. Separate chapters 
are then devoted to the competition of diligences, and to extra- 
ordinary and summary actions and diligences during process. 

The subject of evidence is next handled in four chapters, 
which in the present day would have formed a separate 
tireatise : 1. Proof by writ ; 2. Proof by witnesses ; 3. Proof by 
oath ; 4. Extraordinary means of proof; and, finally, after con- 
sidering the decrees of the Court, the various forms of execu- 
tion, lawburrows the preventive and deforcement the remedial 



170 LORD STAIR 

form of personal diligence, inhibition, arrestment, and adjudi- 
cation, the diligences which affect property, as well as the 
manner of suspending executions are treated. 

This long but necessarily rapid summary will, it is hoped^ 
give to the reader who is ignorant of Stair's work a clue to its 
scope and contents. It forms a complete body of law or 
Corpus Juris for Scotland. The time for treatises on special 
subjects had fortunately not arrived, for such treatises rudely 
sever the subtle connexion which exists between the different 
parts of jurisprudence, and deprive each part of the illustra- 
tions it derives from the rest A master mind was required, 
even when the law was less complex than it now is, to grasp 
the various parts, and unite them in a complete whole ; but 
given such a mind, the work done is one that may endure, 
though many and even most of its parts should be altered by 
the changes which time brings to every system of posttiye 
jurisprudence — for it represents Scotch law as it existed when 
first moulded into shape by the great lawyers of the sixteenth 
and seventeenth centuries, from which the existing law has 
been and the future law will be developed. Perhaps the traits 
which most deserve admiration are the consummate order or 
arrangement of the work, which, once apprehended, can never 
be forgotten, and the concise clearness of the expression. 

The learning of Stair is of the best sort, wide but exact, 
and never obtruded — ^rather leaving his extensive reading to 
be inferred than exhibiting it. With the civil law of Eome, 
the most perfect example of exact jurisprudence the world has 
seen, he is familiar both in its original sources and as treated 
by the best commentators of his time; but he never forgets 
how much it has been modified by Christian influences and 
the Canon law, and that it was not accepted in Scotland except 
as a model of juristic reasoning, and as a supplementary law 
where the municipal is defective. 

The law of England he does not contemn with the pedantry 



CHARACTER OF HIS " INBTITUTIONSr 171 

of professed ignorance, nor does he make a dangerous pretence 
of knowledge of it, but in the places where he quotas it uses it in 
illustration of or contrast with the custom and law of Scotland. 

The philosophical and the religious ground or basis of 
positive law is frequently alluded to, but his treatise never 
loses itself in generalities ; it is the work of a practice^ lawyer 
who deals with the rights of Scotchmen as fixed by the law 
to which they are subject The decisions of the Court of 
which he had forty years' experience when he wrote his first 
edition, twenty as an advocate, ten as a judge, ten as its presi- 
dent^ are his guideposts in every page, often in every line. He 
has no superstitious reverence foi their authority, but he feels 
their importance in making the law constant and rights known 
and secura His historical insight never fails, when he ex- 
plains the bearing of ancient statutes or the limits of cus* 
toms. The more modern Acts of Parliament he expounds with 
the close observation only possible to a judge who has also 
been a l^slator. He sees law not as most lawyera from one 
or two points of view only, but as a law-giver who has watched 
and taken part in its formation, as an advocate who haa tested 
it, as a judge who has applied it^ as a writer who is expounding 
it His opportunities had been unrivalled, and he used them 
all Hence his Institutions will probably never be surpassed, 
for it is in the highest degree improbable that to equal talent, 
there will ever again be granted equal experience. 

The effect of the work upon Scotch law can scarcely be exag- 
gerated. Before it there had existed no treatise except that of 
Craig, which dealt only with the feudal branch, and in treating 
that borrowed much from the customs of other nations. Since 
its date four writers have essayed to cover the whole field of 
Scottish jurisprudence : Sir Greorge Mackenzie, Lord Bankton, 
Mr. Erskine, and Mr. Bell The work of Mackenzie^ is slight, of 

^ Mackenzie's ImtUtUlons of the Law qf ScoUatid were first published in 
1684. 



172 LORD STAIR 

much less value than his ObservcUians on the Statutes, and com- 
pletely overshadowed by the Institutions of Stair, though it 
must have been useful as an introduction to that treatise for 
the young lawyers of the age in which its was written. The 
Institute of Lord Bankton^ is more elaborate, but has never 
acquired a high authority, being chiefly referred to for the 
sections in which he has compared the law of Scotland with 
that of England. 

Erskine's Institute,^ published twenty years after that of 
Bankton, has better stood the test of time. It was written at a 
period when both the substance of the law and legal phraseology 
had approached much more nearly than in the time of Stair 
their present state; when, to mention two points, heritable 
jurisdictions had been abolished, and the foundations of com- 
mercial law had been laid in the practice of merchants and the 
precedents of the Court. The education of lawyers also was then 
no longer based exclusively on the civil and feudal laws, but the 
municipal law of Scotland, of which Erskine was professor, had 
become the chief subject of study. His work is peculiarly 
adapted to the tendencies of the Scotch intellect : plain rather 
than subtle, sure so far as he goes rather than going to the 
bottom of the subject, he is the lawyer of common sense, less 
antiquarian, and therefore now more practical, but also less 
philosophical and less learned than Stair. 

Mr. BeU, like Mr. Erskine, a professor of the municipal law, 
was a lawyer of the same school ; but he had the great advan- 
tage of a more intimate acquaintance with practice, and of a 
wider reading which embraced English case-law and the works 
of the leading modem continental jurists. If Stair be taken as 
the type of the philosophical and Erskine of the common-sense 

^ An InstUtUe qf the Law qf Scotland tn CivU Rights, with obeervations 
upon the agreement and diversity between them and the laws of England, 
1761-3. 

' An InsUtute qf the Law qf Scotlandt in four books, in the order of Sir 
George Mackenzie's InHUtaions of that law, first published 1773. 



SUBSEQUENT INSTITUTIONAL WORKS 173 

lawyer, Mr. Bell may perhaps be styled the lawyer of prece- 
dent. Both his Principles ^ and his Commentaries ^ are admir- 
able repertories of the decided cases, the points established by 
them, the distinctions and the conflicts between them, and the 
principles to be collected from them. It would not be difficult 
to turn the former treatise into a code of Scotch law, and to do 
so would be a useful work. No stronger proof could be 
afforded of the sterling worth of the Instihitions of Stair, than 
that while both the great lawyers we have last mentioned 
largely used his work, and wrote so much nearer our own time, 
they are so far from superseding it, that whenever search has 
to be made for the ultimate principles of those parts of the law 
he treated, or their historical origin has to be traced, recourse 
must still be had to his Institutions. 



APPENDIX. 



RATIFICATION in favours of 5ir J. D. of S. Knight and Baronet, 
President of the Session^ of the Contract past hetunxt his Lordship 
and P. T. and A. G. his Spouse, for Printing the Acts of Sederunt, 
and Decisions of the Lords of Session, and Index thereof, the Institu- 
tions of the Law of Scotland f/rst & second Part, with the form of 
process, with a Treatise, containing four Inquiries concerning Humane 
Knowledge, Natural Theologie, Morality and Phisiologie. 

OUR SOVEREIGN LORD Ordains a Letter to be past under His 
Majesties Privy Seal, in due Form, bearing ; That whereas, Sir /. 
D. of S. President of the Session, hath observed and written the 
Acts and Decisions of the Lords of Session since His Majesties 

^ Principles of the Law ofSoodand, for the use of students in the Univer- 
sity of Edinburgh, 1829. 

* Commentaries on the Lata qfScotiand, and on the principles of Mercan- 
tile Jurisprudence considered in relation to bankruptcy, competitions of 
creditors, and imprisonment for debt. 1st ed. 1810, 5th and last author's 
ed. 1826. 



174 LORD STAIR 

happy Restauration to this time, and hath also written the Institu- 
tions of the Law of His Ancient Kingdom of Scotland ; And His 
Majesty being well satisfied with his Pains and Diligence therein, 
and knowing his long Experience and Knowledge of the Laws and 
Customs of that Kingdom, and his constant Affection and Faith- 
fulness to His Majesty, and bein^ confident of the great Benefite 
may arise to ail His Majesties Subjects of that his ancient King- 
dom, by publishing of the eaids Decisions and Institutions, and 
being willing to give to the said Sir J. all Incouragement therein ; 
Therefore Katefieing and Approving the Contract agreed upon 
betwixt the said Sir /. and A. C. and P. T. Merchant in Edm- 
burghf now her Spouse, having right to, and ezercing the Office 
of His Majesties Printer in Scotland, for Printing of the saids Books, 
in all the Heads, Articles and Clauses therein contained, prohibit- 
ing all others to Print the saids Books for the space of nineteen 
years, without the special leave of the said S, J, his Heirs and 
Successors, of which Contract the Tenor follows (At Edinburgh 
the 26 day of March 16 fourescore one years : It is agreed, Con- 
tiucted, and finally ended betwixt the Parties following, they are 
to say, S. J. D, of S. Knight and Baronet, President of the Session 
on the ane part^ and F. T. Merchant Burgess of Edinburgh, and A, 
C. now his spouse on the other part, as after follows, viz. The said 
S, J, binds and obliges him, his Heirs and Successors, to deliver to 
the said P. and his said Spouse the several Manuscripts under- 
written, or Copies thereof, to the effect the same may be Printed 
in manner after-mentioned, and that in due time, that the Press be 
not hindred, nor the said Work delayed, viz. The Acts of Sedemnt, 
and Decisions of the Lords of Session observed by the said S, J. 
from the first of Jum 1 6 and sixty one years till this time, by the 
space of twenty years, together with the Index thereof, the Insti- 
tutions of the Law of Scotland, the first and second Part, with the 
Form of Process before the Lords of Session, together with a 
Treatise containing four Inquirieii concerning Humane Knowledge, 
Natural Theohgie, Morality and Phimlogie ; Likeas, the said S, J, 
binds and obliges him and his foresaids, not to give Copies or War- 
rands to Print or Re-print any of these saids Books, to any other 
person or persons, during the said P. his said Spouse and their 
Assigneys, continuing and exercing the Office of His Majesties 
Printer, with Power to them and their foresaids to Re-print the 



RATIFICATION OF CONTRACT, 175 

Baids Treatises, or any of them as they shall think fit or con- 
venient : And upon the other Part, the said P, T. and A. C, his 
Spouse, and their Successors and Assigneys, binds and obliges 
them to Print, or cause be Printed upon the Letter called the 
English Boman^ conform to the Printed Sheet subscribed by both 
Parties, of the date of thir presents, and shall begin the 
printing thereof immediatly; and sicklike the said P. his said 
Spouse, and their foresaids, binds and obliges them to Print six 
sheet thereof every Week, ay and while the saids hail] Copies 
be perfected, the samen not being impeded by the presenting of 
the saids Treatises, or Copies thereof, or by correcting of the 
samen when printed; And if there should be more than six 
Sheets thereof perfected Weekly, then, and in that case, the said 
S. J. obliges him and his foresaids to cause the Correctors to be 
furnished by him, to dispatch the samen whensoever the samen 
shall come in their hands, and that in the mean time till the saids 
Books be fully Printed and compleated, the said P. his said Spouse 
and their foresaids, bind and oblige them, to give out no Duplicats 
of the saids Treatises, or any part thereof, nor suffer any Copies to 
be taken of the same till it be revised by him and his foresaids, or 
by any whom the said S. J, sbaU appoint, and to amend the samen 
accordingly ; And to that effect the said P. his said Spouse and 
their foresaids, binds and obliges them to keep the written Copies, 
and printed Scheduls of the saids Treatises under Lock and Key, 
in their own Custody, until the samen be fully printed, and that 
under the Pain of an Hundred lib. Scots for each Copy to be payed 
by them and their foresaids to the said S. J, and his foresaids, in 
case any written and printed Copies of the foresaid Books, or any 
part thereof be found out of their Custody as said is ; Likeas, the 
said P. his said Spouse, and their foresaids, bind and oblige them 
to deliver to the said S, J, and his foresaids, the Number of Twelve 
of every one of the saids Treatises, well bound in Leather, the one 
half thereof being Guilded, and that so soon as the samen are 
perfected, whensoever he shal call for the samen, under the pain 
of 40 lib. Scots money, as the liquidat price thereof by Consent ; 
And likeways the said P. his said Spouse, and their foresaids bind 
and oblige them to make use of the Priviledge granted to His 
Majesties Printers, and not to permit any other person whatsoever 
to incroach upon the said Priviledge granted to His Majesties 



176 LORD STAIR , 

Printers, nor to suffer any other persons within this Kingdom or 
Printers therein, to make use of Printers abroad to Print or Re- 
print the saids Books, or any part thereof, or any Stationer, Mer- 
chant, or other person, to Sell, Vend, or Disperse the samen so 
printed by others, without the special leave and Consent of both 
the saids Parties Contractors, and their foresaids, in Write sub- 
scribed by them ; And also, that they shall not suffer any person 
or persons whatsoever within this Kingdom to Print or Ee-print 
the saids Books, or any of them, or any part of the samen, or to 
sell, Vend or Disperse them, and do hereby communicate the 
Benefite of the Penalties and Confiscations that they shall procure 
upon the Contraveeners of the said Priviledge, in printing the 
saids Books, or any part thereof, by any other than the said P. his 
saids Spouse and their foresaids, equally betwixt the saids Parties 
Contractors ; And both Parties binds and obliges them to perform 
and fullfil the Premisses each of them their own parts to others, 
under the pain of 1000 Merks Scots money, by and attour per- 
formance of the Premisses ; And for the more security. Both the 
saids Parties are content, and consents that thir presents be insert 
and Begistrat in the Books of Council and Session, or in any other 
Judicatory Books competent, to have the Strength of an Decreet 
of either of the Judges thereof interponed thereto, that Letters of 
Homing on six days, and others Executorial necessary may be 
direct hereupon, in form as effeirs. Given at the Court at White- 
hall the 11 day o/ April 1681, and of his Majesties Reign the thirty 
third year. 



CHAPTER IX. 

1681-1686. 

Stair lives in retiremeiit at Cancreoch in Galloway and Stair in Ayrshire— GommiB- 
sion granted to Claverhouse, as Sheriff of Wigton, to pat down Conventicles, 
1682 — Letters from Stair to Lord Qaeensberry — Pats off proposal to wait apon 
Dake of York — Sends Qaeensberry a copy of tiie Institutions — Parties and Con- 
venticles in Galloway— Claverhonse comes to Old Lace Parish— Conflict of 
Jorisdiction between him and Sir John Dalrymple, as Bailie of Regality— Sir 
John offers to bay off Regality from Claverhouse — Stair writes to Qaeensberry 
complaining of Claverhouse — Conceals himself, and flies to Holland to avoid 
prosecution, October 1682 — Claverhouse and the Master of Stair make mutual 
complaints against each other before the Privy Council, which acquits Claver- 
house and condemns the Master of Stair, who is deprived of his office as Bailie 
—Stair lives in Leyden — Description of that town and its tTniversity — Its Profes- 
sors — Intercourse with Utrecht — Controversies of Aristotelians and Cartesians — 
Cocceians and Voetians — Other celebrated men in Holland—Spinoza — ^Bayle — 
Fagel— The Dutch Artists— General Activity and Industry of the Dutch— Scotch 
Exiles at this time in Holland described by Stewart of Coltness — Stair publishes 
first volume of his Decisions of the Court of Session — His diligence in noting 
Cases — His Decisions the first published— History of Scotch Law Reporting — 
Style of his Reports— Contrast between them and present Reports. 

Stair did not find in Galloway the quiet retirement his age 
and indifferent health made him desire. 

On 31st January 1682, a Commission was issued by the 
Privy Council to Graham of Claverhouse, as Sheriff of Wigton. 
Power was given by it to call before him all persons in that 
shire guilty of withdrawing from the public ordinances in 
their parish churches since the Act of Indemnity, or guilty 
<' of conventicles, disorderly baptisms and marriages, or har- 
bouring and resetting rebels, and to enact the fines imposed 
by Parliament" ^ Claverhouse was already, with that prompt - 

1 Wodrow, iii. 370. 
M 



178 LORD STAIR. 

ness which distinguished him, on the scene of action, and had 
received a license from the Council to use a house or chapel 
belonging to John Dalrymple, Master of Stair, to keep guard in, 
as well as a house of Sir Bobert Maxwell's at Elrkcudbiight.^ 

In May he received the thanks of the Council for the zeal 
with which he was executing his office. 

Stair was then residing sometimes at Carscreoch in Gallo- 
way, sometimes at his patrimonial seat of Stair in Ayrshire. 
On his return to Scotland he had been advised by Lord Queens- 
berry, who then stood high in the favour of the King, having 
recently been created a Marquis, to wait upon the Duke of York. 
In the following letter, written from Stair on 15th February 
1682, he expressed his willingness to do so, but his wish to 
put it off to a more convenient time : — 

** Mt Lobd, — I find myself still more and more obliged to 
your Lordship by the account I have from my son. I have 
long and still more firmly resolved that I and mine shall to 
our power be serviceable to your Lordship and your noble family 
to which we have the honour to be related. My son showed 
me your Lordship thought it would be fit I should wait upon 
the Duke. If your Lordship find it his Highness inclination, 
I shall not fail in it, but the beginning of April or end of 
March will be the fittest time. I have been so long from my 
affairs, that it requires a considerable time to put them in order. 
I have not been a month here these two years past I am to 
be back in Galloway in a few days. Troops are gone in there, 
whereof I had no notice that they were to come, until I found 
them in this shire on their way thither. Provision is every- 
where scarce this year for horses, but more there than any- 



1 Wodrow, iii. 370. Act of the Privy Council, 27th Januftry 1682. 
* Qiieeiubeny Papers quoted in Napier's MemorUiU of the ViBCCwnt 
Dundee^ ii. 286, who says in a note, '* There is more in the letter, but only 



IN RETIREMENT AT CARSCREOCE, US2. 179 

On the 1st of July he again writes to Queensbeny from 
Carscreoch :— 

" My Lobd, — I have ordered one of my books lately printed 
to be presented to your Lordship as a token of my most sincere 
affection.^ I had long resolved to retire before age should 
bring decay. I did see the example of my predecessor, Sir 
John Gilmour, and many others, whose spirits, though very 
pregnant, yet being long bended behoved to weaken, whereof 
themselves were not so sensible as others, and therefore I lefk 
this book behind me for the service of my Prince and country ; 
though I knew it might breed emulation and envy in others, 
for it is hard in such a little cotmtry as this for a man to write, 
in his awn life especially going off the stage ivithotU detraction, 
albeit a while after his time it wovid meet with favours from 
all, 

" Parties * have been much in this place of the coimty. If 
they had come two or three years sooner, neither they nor we 
would have heeded the troubla For this little shire till then 
was all orderly, and quiet as any in Scotland. And indeed 
the people here have not a principle of separation. But parties 
coming to Dumfries on the one hand, and to Ayr on the other, 
forced the hill preachers into an angle, and people did gaze 
upon them as a novelty they had not seen. But generally they 
do frankly engage against conventicles, and to keep the Church, 
as, I believe, Claverhouse will signify. I have been much obliged 
to him for his civility ; and my son hath not much owned the 
interest of the regality of Glenluce, whereof he is heritable 
baillie infeft, express with the whole casualties, fines, and 
emoluments of the Court by a long tract of rights. There has 

relating to the private affairs of the Master of Cathcart, who had married 
the ex-President's second daughter. ' It is an old f amOy,' he says, < and I 
have done mach to preserve it.' " 

^ This, of course, refers to the InsHtu^ana, 

^ " Parties " were the troops sent to suppress conventicles. 



180 LORD STAIR 

been decreets taken against these disorders several times, but 
his absence and mine make less effect than otherwise would 
be ; yet not so short of the neighbouring shires ; and so soon 
as he came here he offered either to fine or to give a deputa- 
tion to Claverhouse's brother to do it, but was desired to for- 
bear till it was known what the Council would order as to 
regalitie& And whatsoever may be done as to accumu- 
lative commissions to increase the office^ yet the casualties 
being a proper private right seems not to be derogate. 
Though in some cases the Justice-General did cognosce, with 
conjunction of the bailie of regality, yet he never claimed the 
casualties, and if it be found otherways, your Lordships 
may consider what regalities may import while these Com- 
missioners give .... severally, without the judges ordinary, 
and without consideration of the neglect. For our part, it was 
fit we should not retard any thing made for the king^s service, 
and I doubt not that Claverhouse will bear witness that we 
did not hinder, but rather concur, though we are not ignorant 
of the point of right, nor would be a preparative to pre- 
judge others, there being so many and so eminent persons 
interested in regalities. My lord, the supply hath been called 
for out of my lands for Martinmas last. My succession came 
not imtill the first of November, ten days before that term. 
I will not plead right in it ; yet it were of consequence to 
me, more than the value, that it were seen that authority is 
not unfavourable to me. Judges who are not deposed were 
to get their quietus est from their gracious Prince with 
kindness. He hath not an older judge in his dominions, and 
I doubt nothing of his favour. Whatever may be conjectured 
from his late distance upon my going without leave of his 
Eoyal Highness, yet there was some reason in it I could not 
move my going without meeting the Test, and it was not my 
part to be amongst the first demurrers, seeing I resolved to 
retire and resign all public capacity, that my example need 



CLAVERH0U8E IN OLD LUCE PARISH. 181 

not stumble any. I never did nor do resolve to propagate my 
scruples against public resolutions, though many times I have 
told them privately to those who might m,aJce no evil use of them, 
being in chief trust. I hope your lordship will pardon this 
tediousness. I am resolved to say very little to any others, 
but my confidence is so much in your Lordship that I will 
even use all frankness with yon, being determined unchange- 
ably to continue, my lord, your Lordship's most affectionate 
and most humble servant, Ja. Dalrtmple." 

In the beginning of August Claverhouse came to the 
parish of Old Luce, in which Garscreoch lies, and the conflict 
of jurisdiction between him and the Master of Stair we have 
seen, by the last letter of Stair's, to have been impending, soon 
broke out On the 8th Stair writes to Queensberry : — 

"My Lord, — Claverhouse came to this parish Saturday 
last, and by some mistake went away without doing anything 
concerning disorders in this regality, but as to six or seven 
whom he carried prisoners to Stranraer. My son will give 
your Lordship an account of all that passed, and will take his 
directions from your Lordship entirely. I have the honour 
to be related to your Lordship, and I and mine are fully de- 
termined to serve you and your noble family ; and I am fully 
confident of your favour, and that you will not believe harsh 
representations of us, but will, by your countenance, discourage 
any that would discourage the quiet retirement of, my Lord, 
your Lordship's most faithful, most affectionate, and most 
humble servant, JiL Dalrymple," 

The Master of Stair had about this time given notice of 
his intention to hold a Begality Court, the object of which 
was to assert his right of jurisdiction and to protect the people 
by milder fines from the severe ones Claverhouse was imposing. 
He also forbade any one to attend the Court Claverhouse had 



182 LORD STAIR 

summoned, *' which orders/' the latter afterwards remarked in 
his report to the Privy Council, "the people so punctually 
observed, that when the complainer came to the place at the 
time appointed there appeared nobody but Sir John and his 
Mher, Lord Stair, who, after having endeavoured in vain to 
persuade the complainers of the legality of their proceedings, 
and understood from the complainers that he was resolved to 
force the people to obedience, and by the assistance of the 
troops to bring them to justice, offered to bribe the complainer 
and give him a sum of money not to meddle with that regality, 
which offers being rejected, they offered to themselves other 
projects for carrying on their designs." ^ 

This offer* has been represented by the biographer of Dimdee 
as a high crime on the part of the Dalrymples, but the attempt 
to buy off the district from the penal exactions of the Commis- 
sion does not seem to deserve that character. The gentlemen 
of Fife had already done so by a bond, under which they 
engaged to suppress Conventicles, and something similar had 
been done in part of Lanark. It was in this light that it was 
viewed by Sir George Mackenzie, who writes, on 10th October 
to Lord Aberdeen, " Clavrose has brok a caball that was de- 
signing in Galloway to undertak for the peace of the countiy, 
as Clydesdale did. The country is most peaceable, and the 
shyre of Air is like to be as peaceable as Angus and keep the 
kirk as welL"^ 

The conduct of Stair throughout these proceedings does 
not appear difficult to imderstand He wished for quiet, — 
was anxious to keep in with the Government, no doubt 
in part with a view to maintain the rights and preserve the 
estates of himself and his son, and he used all the influence 

^ In Olaverhoufle's complaint to the PriTy Oonncil this appears to have 
been represented as " a bribe to connive at the irregularities of his mother 
the Lady Stair, bis sisters, and others." — Fonntainhall, Dedswiu, L 201. 

* Napier's MemaricUs of ViscoufU Dundee^ iL 89. 

' Letter to Earl of Aberdeen, p. 107. ' 



CLAVERH0U8E AND MASTER OF STAIR 183 

he could command with this object But he also was plainly 
endeavouring in the country, as he had done at the Council 
Board in Edinburgh, to mitigate the severity of the penal laws. 

At a Court held by the Master, on the 15th of August, 
fines were imposed, which Claverhouse, in his Complaint, 
calls " mock^ fines, not extending to the fiftieth, sixtieth, or 
hundredth part of what by law they ought to have been fined in." 
Stair and his wife, who had withdrawn from the parish church, 
and were therefore specially obnoxious, concealed themselves, 
and were supposed to have left the country, but it appears that 
their actual flight did not take place till some weeks later. 

In a letter, without date of place, probably because he 
did not deem it prudent to give one, Stair writes to Queens- 
berry on 15th September : — 

** My Lokd, — It was my misfortune you were not at the 
last Council-day. I was so rudely treated by Claverhouse, 
having fined my factor and tenants in near a thousand pounds 
sterling, and there was said to be a citation against myself. I 
thought it time to cause an addition to be made to the Council 
for saving myself from this trouble, and for suspending the 
sentences against the tenants, that the Coimcil might put them 
in the like condition of others of like guUt. The suspension was 
only granted on consignation, which was equal to denying it ; 
and Claverhouse denied any warrant from him to cite me, and 
the Council recommended that he should not proceed on the 
citation which he said his brother might have given me 
amongst the other heritors of the parish. I found likewise that 
Claverhouse did press and was raising a libel to stage myself, 
my wife, and my eldest son, and I was dogged by Captain 
Patrick Graham, when there was a flagrant report of my being 
seized. Therefore I withdrew till I might know whether these 

^ FountainhaU, on the other hand, caUs the fines of Claverhouse *' most 
exorbitant.*' — Decisions, i. p. 191. 



184 LORD STAIR 

things would be owned and followed by those in authority. I 
had his Eoyal Highness's assurance by my Lord Hyde that I 
might securely live in any place in Scotland I pleased. I do 
resolve to represent to his Highness this usage. Nothing, for 
ought I could learn, was mentioned as the grounds of an accu- 
sation against me but that young Craighton had 1)een harboured 
in my house a year ago^ when it is commonly known that for a 
year and more before November last I was not in Galloway, 
nor did even know or hear of any such thing till it was ex- 
piscat by examining all neighbours concerning my family. It 
is true my wife withdrew from the minister^ of our parish, 
which is no new thing, and I did believe not to be disquieted 
upon things not done or allowed by me, or which I cannot help. 
It is like great noise will be made of my consciousness to some 
strange guilt, but I thank God I am conscious of none, but 
have most loyally and affectionately served the king, and was 
hopeful to be protected in my age and indisposition, which 
hath continued near a year. My desire and hope is your 
Lordship wiU entertain no evil disposition of me, and will be 
instrumental that I may have security to live at home and 
end my days in peace. I knew that if I were staged that my 
wife withdrawing might be made use of against me, and therefore 
I would not appear till I knew whether these things would be 
prosecuted against, my Lord, your Lordship's affectionate and 
most humble servant, Ja. DalbVmple."' 

It must have been very soon after this, in the end of Septem- 
ber or beginning of October, that Stair retired to Holland as 
" the place of the greatest common safety," having been advised 

^ Who this minister was I have not ascertained, but perhaps his character 
may be conjectured from that of his successor, Colin Dalgleish, who was 
appointed to the parish of Old Luce in 1684, and on SOth July 1686 received 
a pension of £50 from King James, soon after which he became a Papist. -« 
Scott's FoiU Ecdema Sootkana, Part iL p. 766. 

' Queensberry Papers, quoted in Napier*s MemuriaU qf Dundee, p. 293. 



TAKES REFUGE IN HOLLAND, 185 

by Sir George Mackenzie that he could not guarantee him 
against prosecution if he remained in Scotland.^ Mackenzie, 
on 10th October 1682, writes to Lord Aberdeen, Stair's suc- 
cessor as President : " and really when I consider all, we are 
happier in your principles and loyaltie, and that we are sure 
you wold dy and begge for the common Cavaliere cause, and in 
conscience so wold I. But however we must mak the best of 
eveiy man and accident for the King our master, and the Duk 
our patron. I told the lat President that I wold not own 
him against our principles, whereupon Duk Hamilton told me 
he sent for Sir Geoige Lockhart who has been very generous to 
him." 

The generosity of Lockhart may perhaps have been his under- 
taking the defence of Sir John Dalrymple against the Complaint 
of Claverhouse before the Privy CounciL That body, as might 
have been expected, condemned the Master of Stair, and 
acquitted Claverhouse, against whom he had brought a counter 
libel The temper of the Council was shewn by its refusing 
to allow Dalrymple to lead evidence in his defence unless he 
raised this coimter libel, and by the proposal of the Chancellor, 
from which, however, he afterwards departed, to examine Lock- 
hart as a witness against his client. After Dalrymple had 
brought his libel, and proof had been led on both sides, the 
Council found the charge against Claverhouse of exacting free 
quarters, of unwarrantably seizing upon and fining the lieges, 

^ Law Bays '* Stair went to Holland in October 16S2 " {Manariab, p. 236), 
but Sir William Paterson writes to Lord Aberdeen on 27tii September, *' and 
it is believed that my Lord Stair has retired to Holland." Sir Greorge 
Mackenzie of Tarbert, Lord Clerk Register, writes to the same nobleman on 
18th October : — <* Shaftesbury is absconded ; Lord Stair is in Holland ; his 
son Hugh is on his return," and on 24th October, Alexander, Earl of 
Moray, writes to him from WhitehaU : — ** Yesterday I had a letter by the 
Holland packet from Sir James Dalrymple, which this morning I showed.his 
Royal Highness, and he adyysed I shoold send a copy of it to your Lordship. 
And now I send yon the principal enclosed, which your Lordship may please 
to return with what you think fit to say upon it." 







f 



/■ 



186 LORD STAIR. 

and of exacting sums of money without probation or sentence, 
" not proven to infer any crime, fault, or misdemeaTumr, btU, on 
the contrary, that he had done his duty,** for which they ordered 
he should have the Council's thanks, a decision which reminds 
us of the saying of Charles when Lauderdale had been accused 
on similar charges, that he might have done many things against 
the country, but none against the King.^ Dabymple, on the 
other hand, was found guilty of employing persons to be his 
clerk, and bailie of regality, who had been formerly convened 
before Claverhouse of imposing inadequate fines, of prohibiting 
persons within the regality from attending Claverhouse's 
Court, of causing a servant of his to make a seditious 
complaint against the soldiers for exaction and oppression, and 
of misrepresenting Claverhouse to the Privy Council For 
these offences he was deprived of his office of Bailie of the 
Begality, and fined £5 sterling. " There was," says FountainhaU, 
who acted with Sir George Lockhart as counsel for Dalrymple, 
" much transport, flame, and fury in this cause, and the cloud on 
the late President's family was taken advantage of now, which 
shows the world's instability." * 

In Holland Stair chose Leyden for his residence, attracted 
no doubt by the fame of its university and the advantages the 
society of its learned men and library afforded for study. 
Even at the present day the passing traveller is struck with 
the fitness of this venerable town, with its unpretending yet 
convenient houses, its quiet streets intersected with still canals, 
and its peaceful surrounding lahdscape, for the student's life. 
The University of lipsius, Scaliger, and Salmasius, of Heinsius, 

^ ContraBt with this the language of King William on accepting the 
Crown of Scotland : " We shall never believe that the tme interest of the 
people and the Crown can be opposite, and shall always account that our 
greatest prerogative to enact such laws as may promote truth, peace, and 
wealtli in our kingdoms." 

* FountainhaU, Decisions, I 191, 201, 217-270, and 303; see also 
Wodrow, iii 438. 



RESIDES AT LEYDEN. 187 

and the Douzas, of Arminios and Grotius, it has been called 
with excusable exaggeration the most sacred spot in Europe 
for the scholar.^ Great must have been the contrast between 
such a scene and what was then passing at the Council Board 
and Parliament House in Edinburgh, or in the country dis- 
tricts of the west, where the troopers of Claverhouse hunted 
the conventiclers, and their preachers denounced the perjured 
King and his godless ministers with the anathemas of the 
Hebrew prophets. Yet the peace of Leyden had been bought 
with blood. At the close of the second siege, the university 
had been founded by William the Silent in 1675 "to gratify," 
as the charter expresses it, ''the city and its burghers on 
account of the heavy burdens sustcdned by them dunng the 
war with such faithfulness."^ A prudent management had 
drawn to it as professors many eminent men, not of Holland 
merely, but from other parts of Europe.' Amongst its orna- 
ments when Stair went there were the learned ecclesiastical 
historian the Genevese Spanheim,^ who had been called from 
Heidelberg in 1670, Gronovius of Hamburgh, the author of 
" Collections of Greek Antiquities " and annotator of Grotius, 
of whom it was said by Burnet,* he was such a master of 
ancient learning it seemed as if he had all the authors lying 
open before him, and the divines, Trigland^ and Lemoyne. 

^ " Hanc urbem," wrote Greviua, at this time a Professor at Utrecht, 
**pT8B csteris nobilitavit et super onrnes extulit iUnstrissimum et augus* 
tissimam iUud sapientin et omnis doctrinse sacrarium maximum orbis 
museum iu quo plures viri summi qui principatum ingenii et eruditionis 
tenuerunt floruere quam in ceteris omnibus Europed Academiis." 

> Charter of Leyden, quoted by Motley, Dutch Hepublic, p. 581. 

> See on this point Sir William Hamilton's account of the way in which 
the patronage of Leyden was exercised when James Douza was one of its 
Curators^ and Scaliger and Salmasius were elected to its Chairs. — DiacuasionSf 

p. 36a 

* Calamy's Xi/e, 173. * Burnet's Letters. 

• Author of Varia Sacra aeu Sylioge variorum Opusculorum Qnzcorum ad 
rem eccUricutkam spedanUum. 



188 LORD STAIR. 

The civil law was represented by Noodt,^ called the Dutch 
Cujacius, Schulting,* and the younger Voet.' At the sister school 
of Utrecht,* which kept up a constant intercourse with Leyden, 
enlivened by the controversies of the professors, De Vries 
lectured on politics, Graevius on history, Van der Meuden on 
civil law, and Witsius on theology. The contests'^ between 
the old philosophy of Aristotle and the new which Descartes 
had founded, and between the theology of the Cocceians and 
the Yoetians, which had succeeded the fiercer struggles of the 
Arminians and Gomansts, still continued. Nor was the rest of 
Holland without its celebrated men. At Amsterdam Spinoza 
had shortly before ended what even the abhorrers of his philo- 
sophy admit to have been a blameless life. In the same city 
Bayle was just commencing that singular literary career from 
which modem criticism dates its origin ; his " Nouvelles de la 
Bepublique des Lettres" was first published in 1684. A crowd 
of English and Scotch exiles were then learning from the citizens 
and statesmen of the Bepublic, of whom Fagel was the most 
illustrious, those principles of toleration which, when trans- 
planted to Britain, were to bear such noble fruit In 1686 
Locke wrote from Utrecht his famous " Letters on Toleration." 

1 Gerardt Noodt, born 1647, died 1725. 

^ Antony Schnlting, bom 1659, died 1734. 

s John Voet, bom 1647, died 1714. 

^ Galamy's Life, 157. 

6 «The main differences then in the uniyersity," writes Calamy, who 
studied about this date at Utrecht, " were about the old philosophy and the 
new, and between the Cocceians and Voetians." — L^e, p. 157. Cocceius had 
died at Leyden in .1669, Voetius at Utrecht in 1672. These two contro- 
versies were intimately connected, the Cocceians in theology being in general 
Cartesians in philosophy. — See Mosheim, Church Hitiory, u. 257. The 
Voetians were the foUowers of Gisbert Voet, Professor of Divinity at 
Utrecht. Cocceius was a native of Bremen, and Professor at Leyden. His 
leading principle of biblical interpretation was, '' that the words and phrases 
of Scripture are to be understood in every sense of which they are suscep- 
tible, or, in other words, that they signify in effect everything that they can 
possibly signify " (Mosheim, ii. p. 258) — a principle unconsciously accepted 
by many who would shrink from stating it explicitly. 



SCOTCH EXILES IN HOLLAND. 189 

Even art^ for which the Low Countries might seem an un- 
favourable soil, flourished in the atmosphere of liberty. The 
memory of Subens, Van Dyck, and Bembrandt was still &esh, 
and, though the schools which followed theirs aimed at a lower 
mark, the human and the natural rather than the divine — the 
living present^ however trivial, rather than the forgotten past, 
however noble — ^the aspect of the land and sea, the manners 
and the life of Holland towards the close of this century were 
fortunately being preserved for after times in the pictures of 
Buysdael, Backhuysen, and Vandervelde, of Van Ostade, Oerard 
Douw, and the younger Teniers. '' An universal industry/' says 
Burnet, " was spread through the whole country." Such was 
the many-sided activity of the people amongst whom for the 
next six years the life of Stair was cast. 

Of Stair and his Scotch companions in exile, the son of one 
of them, Stewart of Coltness, himself bom this year at Utrecht, 
gives the following picturesque account After describing the 
flight of his mother, who, like Stair's wife, had been forced to 
follow her husband to Holland, Stewart writes : ** Her husband, 
with Mr. Pringle of Torwoodlee, came half-way on to Leyden, 
and met these recent fugitives and conducted them to Utrecht, 
where trouble was in part forgot and sorrow in some measure 
fled upon the first transports of being safe and together. Here 
was the ingenuous upright Archibald Earl of Argyle, too 
virtuous for so licentious a Court as that of King Charles. 
Here was the Earl of Loudon, who died anno 1684, and lies 
buried in the English Church at Leyden. There was here the 
Lord Viscount Stair, and with him for education his son, Sir 
David Dalrymple, in better times Lord Advocate, and his 
grandson John, that great general under Queen Anne, and the 
ambassador of elegant figure in France and a field-marshal 
under T^ing Georga Here also was Lord Melville, High 
Commissipner to the Bestitution Parliament under King 
William and Secretary of State, and with him his son, the 



190 LORD STAIR. 

Earl of Leven, who went to the King of Prussia's service, and 
after this was Gonunander-in-chief in Scotland and Govemor 
of Edinburgh Castle in Queen Anne's reign. But it were end- 
less to name all the honest party of gentry and ministers out- 
lawed, banished, and forfaulted for the cause of religious and 
civil liberty. 

"I shall add here was the good and great Mr. William 
Carstaires, high favourite of King William and of his Cabinet 
Councell for Scots affairs ; the Jacobites and disaffected Lords 
for this called him the Cardinale. He surely was one of 
the greatest clergymen ever embellished any Church, often 
Moderator of Assemblies, full of piety and Christian charity."^ 

Stair did not spend the years of his exile in idleness or un- 
availing regrets. Even in absence he stiU served his country, 
and worked for the improvement of her law. The year after 
he came to Leyden he published at Edinburgh the first volume 
of his Decisions of the Court of Session, extending from 1661 
to 1671, to which he prefixed the Acts of Sederunt from 5th 
June 1661 to February 1681. The Epistle in which he dedi- 
cates this work to his former colleagues on the Bench was 
dated at Leyden on 9th November 1683. 

Many similar collections then existed in manuscripts, 
which were moltipUed by copies made by young lawyers, and 
much consulted, but this was the first series ' of Beports which 

^ Coltnees CoUeotion, Maitbrnd Glab. Amongsfc the ezilea not mentioned 
by Stewart were Sir Patrick Hume of Polwarth, the friend of Pope, Swift, 
and Arbnthnot, and Fletcher of Saltoun, afterwards the leader of the 
Patriot party who opposed the Union, Bishop Burnet, James Stewart the 
Lord Advocate under Queen Anne, and Alexander Cunningham, editor of 
Horace and author of A Latin HUtory of OrecU Britaiii. 

* In 1681 Fonntainhall notices that '* George Gibson, brother to the 
Laird of Durie, obtains a warrant from the Privy Council for printing the 
decisions observed by his grandfather, commonly called Dune's Practiques, 
with the alphabetical compend thereof, and prohibiting all others for such a 
term of years to do it» so he expects the printers will offer him money for 
it." — Decisions, L 158. This expectation, if ever realized, was not realised 
tiU 1690, when Dune's Decisions were first published. 



PUBLISHES FIRST VOLUME OF DECISIONS. 191 

had been printed in Scotland, and its publication therefore 
marks an important point in the history of the law. In the 
dedicatory epistle he remarks : " I had the best opportunity to 
make these observations, being scarce a day absent in any of 
these Sessions from the first of June 1661 to the first of August 
1681, and I was not one day absent fix)m the 23d of January 
1671, when it pleased his Majesty to appoint me to be constant 
President of the Session in place of my Lord Craigmillar, who 
then demitted, except the Summer Session of 1679, when I 
was absent by his command." 

This preface contains an interesting notice of the early 
history of Scotch law-reporting. James v. had, at the Institu- 
tion of the College of Justice, ordered a Journal of Decisions 
to be kept, which was done by John Sinclair,^ Dean of Sestalrig, 
for ten years. Sinclair, who became Bishop of Brechin, was 
the third President of the Court, and the earliest reformer, or, 
more correctly, organizer of its procedure. To his residence in 
France may be attributed with much likelihood some of the 
points in which that procedure resembled the Parliament of 
Paris, which had indeed been the model of its founders, the 
Begent Albany, James v., and Gavin Dunbar, Archbishop of 
Glasgow. The custom of keeping records ^ of the decisions by 
the judges themselves was followed by Maitland of Lethington, 

^ Stftir mentions Henry Sinclair, the elder brother of John, who was 
Bishop of Boas, and the second President of the Court, as the compiler of the 
Practics, but I incline to the opinion of Mr. Tytler, that John was the com- 
pUer, both because Henry was not Bean of Bestalrig, and because the 
Decisions commence in 1540, the year of John's admission as an ordinary 
Lord. 

'Sinclair's DecirionB extend from June 1640 to 17th May 1550, see MS. 
Advocates' Library, A. 3. 3. ; Maitland's from 15th December 1550, to 16th 
March 1569 ; and Lord Culross's from 24th March 1570 to 15th April 1589. 
They are to be found in a MS. volume, Advocates' Library, A. 3. 3. Had- 
dington's Decisions extend from 1609 to 1624 ; Hope's from 1610 to 1632 ; 
Durie's from 1621 to 1642 ; Spottiswoode's from 1632 to 1636. Besides 
these named by Stair, there are collections extant by Nicolson, 1610-32, and 
of the decisions of the English Judges from 1655-61. 



192 LORD STAIR 

the elder, Colville Abbot of Culross, Hamilton of Glencairn 
afterwards Earl of HaddiDgton and Lord President, Sir Thomas 
Hope Lord Advocate, Sir James Balfour of Pittendreich Lord 
President, Sir Eobert Spottiswoode of New Abbey Lord Presi- 
dent, Sir Alexander Gibson the first of Dime, and several other 
judges.^ 

After the nomination by Charles n. at his restoration the 
judges of the Court of Session were almost entirely new, which 
rendered it the more necessary that a record of its decisions 
should be kept. This induced Stair to undertake the task 
which received the sanction of his colleagues. His method of 
preparing it he describes in a curious passage, which bears 
witness to his untiring industry, a quality often found in con- 
junction with moderate talents, sometimes wanting in great 
men, but seldom in the greatest ** I did form,** he says, '^ this 
breviat of their decisions in fresh and recent memory de die in 
diem as they were pronounced. 1 seldom eat before I observed the 
Interlocutors I judged of difficulty that past that day, and when 
I waa hindered by any extraordiriary occa^sion, I delayed no 
longer than that toas over. It was neither feazable nor fit that 
I should set down the large pleadings or the written informa- 
tions of parties. I did peruse them thoroughly, and pitched 
upon the reasons which were of moment as to the points deter- 
mined, whereas in the same informations there were many 
obvious clear points insisted in which I omitted." 

His statement of the value of decisions was doubtless 
partly due to the charges of partiality then made against the 
Court. " It is," he says, '' to shew that like cases have like 
events, and that there is no respect of persons in judgment." 

^ The praotioe of pabliBhing reports of decisions was continued by the 
Judges of the ISth century, Sir Hugh Dalrymple, Forbes of CuUoden, 
Lord ELames, Elchies, Kilkerran, Monboddo, and Hailes, and by one of the 
19th, Baron Hume. Since Hume, whose decisions were published alter his 
death, no judge has been a reporter, though several have reported before 
becoming judges. 



STYLE OF STAIRS REPORTS. 193 

The same charges led him to assert the startling and dangerous 
paradox, " that it is more the advantage of a nation that their 
judges were but reputed just, though they were not, than 
that they were just, yet were reputed unjust, for this case 
toucheth and grieveth all, whereas the former can reach but a 
few." 

This paradox, however, contains a truth apt to be over- 
looked, that the bad or low reputation of its Courts of Justice 
is a serious injury to a nation apart altogether from the direct 
consequences of their judgments. 

The style of Stair's reports is concise and clear. The gist 
of the argument is first stated, and then the interlocutor or 
judgment of the Court — the opinions of the judges are not 
given. It may be doubted whether this manner of reporting 
is not in some respects preferable to that now in use. The law 
does not gain in precision, and much time^ is lost by the ver- 
batim narrative of the views of judges of various degrees of 
ability or knowledge of the particular department of law under 
consideration, in which there is frequent repetition, and some- 
times material variation in the grounds of judgment ; and the 
bulk of the reports is inordinately increased. But 3uch a mode 
of reporting necessarily requires a greater knowledge of law in 
the reporter and more care in the preparation of the reports.- 

^ The time lost by this practice is, (1) that of the judges in preparing 
and pronouncing judgments which are mere repetitions ; (2) that of the 
other judges, counsel, and agents, who have to listen to their delivery; 
(3) that of the reporters, who report them, or come to the conclusion that 
they are not reportable ; (4) that of all persons, whether judges, counsel, 
agents, or litigants, who have to study those repeater judgments in order to 
find whether there is variation in them or not. 



N 



CHAPTER X. 



1686-1688. 



Stair publishes at Leyden the Phyaiologia Nova Ea^perimentalu — Position of the 
second half of the 17th century in the history of Physical Sdenoe — ^The PhyHo- 
logia dedicated to the Royal Society of London — Stair describes its aim and his 
new Corpuscular h]rpothesis in the Preface— The Physiologia part of a more 
general treatise intended to embrace the whole of Fliilosophy, which was to 
consist of four Inquiries concerning Human Knowledge, Natural Theology, 
Morality, and Phymology— Analysis of the Physiologia — Its Definitions and 
Axioms— His corpuscular hjrpoUiesis contrasted with the theories of the 
Atomists and Descartes — His theory of motion — His erroneous astronomical 
notions — Undulatory theory of light— His sketch of imperfect chemistry of the 
time — ^The Physiologia favourably reviewed by Bayle — The States-General 
reAise to expel Stair from Holland— Stair charged with treason for complicity 
in Rye House Plot and Argyle's expedition— Acconnt of the proceedings against 
him by Sir George Mackenzie, the Lord Advocate — Evidence against him ob- 
tained by torture, and inconclusive proceedings against him acyoumed — In 
1G87 Sir John Dalrymple, Blaster of Stair, be^mes Lord Advocate, and ob- 
tains a remission for his father — Stair refuses to accept the pardon, and con- 
tinues in Holland till the Revolution of 1088. 



Ik 1686 Stair appeared as an author in a new field hy 
the publication at Leyden of his Physiologia Nova Experi- 
mentalis; but from the expression on the title-page that it 
had been lately translated into Latin (Nuper Latinitate 
donata) and the mention in the preface addressed to the 
Boyal Society of London, that he had received the king's 
diploma for its publication in 1681, we may conclude that 
it had, like his other works, lain by him in manuscript 
for some time. It would seem, indeed, that it was pub- 
lished in the end of 1685, though it bears 1686 on the title- 



PUBLICATION OF THE PHYSIOLOGIA, 195 

page ; ^ for it was reviewed by Bayle in the Nouvdles de la 
lUpublique des Lettres for December 1685. That it had been 
projected, if not written, in 1681 is proved by Stair's con- 
tract * with the printer, where one of the four Inquiries he 
then designed publishing is stated to have been concerning 
Physiologic. 

The second half of the seventeenth century, like that of 
the nineteenth century, will be always remembere'd in the 
history of physical scienca The work of observation and 
experiment, on the necessity of which Bacon had insisted, 
and which Descartes had aided by his critique of knowledge 
and doctrine of method, more than he had injured it by his 

^ Ab the work is rare, and the title-page gives a short summary of its 
coDtents, I transcribe it : 

Physiologia 

Nova 

Experimentalis 

In Qua 

Generales Notiones Aristotelis Epi- 

cnri & Gartesii snpplentur 

errores deteguntur ft emendantur 

Atqne 

Clarae distincta & Speciales Causae prsecipnorum experi- 

mentorum aliorumque phenomenon 

naturalium aperiuntur 

Ex 

Evidentibns principiis quse nemo antehac per- 

spexit & prosecutus est 

Authore D. De Stair, Carolo ii. Brittaniarum 

Begi a Gonsiliis Juris k Status 

Nuper Latinitate donata 

Meditabor de omnibus operibns tuis, Ps. 77 : 12. 



• « « * 

« * « 

« • 



Lugduni Batavorum. 



Apnd COKNELIUM BOUTBSTEYN 
010 10 C LXXXVI. 

2Dallas*siS'(i7e«,Partii. p. 172. 1697. See this Contract in Appendix, Ch. viiL 



196 LORD STAIR. 

erroneous physical speculations, had been for a time retarded 
by political and religious strife. It now advanced with 
gigantic strides. 

" No kingdom of nature," writes Macaulay, " was left unex- 
plored; to that period belonged the chemical discoveries of 
Boyle,^ and the earliest botanical researches of Sloane. It was 
then that Bay" made a new classification of fishes, and that the 
attention of Woodward * was first drawn towards fossils and 
shells. . . . But it was in these noblest and most arduous de- 
partments of knowledge in which induction and mathematical 
demonstration co-operate for the discovery of truth, that the 
English genius won in that age the most memorable triumphs. 
John Wallis* placed the whole system of statics on a new foun- 
dation. 



1 <( Boyle's experiments were made about 1650, and the resnlt at which he 
arrived was, that when the air is thns compressed («.«. by columns of mer- 
cury in tubes), the density is as the pressure. . . . The same law was soon 
afterwards (in 1676) proved experimentally by Mariotte. And the law of the 
air's elasticity, that the density is as the pressure, is sometimes caUed the 
Boy lean Law, and sometimes the Law of Boyle and Mariotte." — ^Whewell, 
History of the InducHve Sciences, ii. 408, Sd Ed., 1857. 

' '' In Ichthyology, Bay with his pupU and friend, Willoughby, appears 
as the first founder of a tenable system. In 1668 He published, with 
additions, at the expense of the Royal Society, WiUoughby's work De His- 
toria PisciwnJ* — ^Whewell, iii. 30. Ray, who was fellow of Trinity GoUege, 
Cambridge, along with Newton, was also one of the first systematisers of 
Botany. — ^Whewell, iii. 261. 

^ Woodward published his Essay towards a Natural History of the Earth 
in 1695. 

4 *< The laws of the mutual impact of bodies were erroneously given by 
Descartes in his Prineipia, and appear to have been first correctly stated by 
Wren, Wallis and Huyghens, who, about the same time (1669), sent papers 
to the Royal Society of London on the subject. In these solutions we per- 
cdve that men were gradually coming to apprehend the third law of motion 
in its most general sense ; namely, that the momentum (which is propor- 
tional to the mass of the body and its velocity jointly) may be taken for the 
measure of the effect ; so that this momentum is as much diminished in the 
striking body by the resistance it experiences, as it is increased in the body 
struck by its impact." — ^Whewell, il 46. 



s:l- .-.r ■• ' •"*- _' I 



SCIENTIFIC DISCOVERIES IN Urn CENTURY. 197 

"Edmond Halley^ investigated the properties of the atmo- 
sphere, the ebb and flow of the seas, the laws of magnetism, 
and the course of the comet. Nor did he shrink from toil, 
peril, and risk in the cause of science. While he, on the rock 
of St. Helena, mapped the consteUatious of the southern hemi- 
sphere, our national observatory was rising at Greenwich, and 
John Flamsteed, the first astronomer-royal, was commencing 
that long series of observations which is never mentioned with- 
out respect and gratitude in any part of the globa But the 
glory of these men, eminent as they were, is cast into the 
shade by the transcendent lustre of one immortal name."^ 

In the year in which Stair published his Physiologia, the 
manuscript of the Principia of Newton, the bearer of this im- 
mortal name, was presented to the Boyal Society of London.' 
It is not wonderful that the treatise of the Scotch lawyer has 
shared the general eclipse. It is interesting, however, to see 
how actively his mind was engaged on the problems which 
Newton's genius solved. 

The preface of Stair's work, addressed to the same Society, 
which had been founded in 1662, at the instance of a 
Scotchman, Sir Eobert Murray, a friend of Lauderdale and 
Stair, whose colleague he had been as Justice-Clerk, holding 

^ ''A paper of HaUey's, in the Philosophical Transactions for January 
1686, professedly inserted as a preparation for Newton's work, contains some 
arguments against the Cartesian hypothesis of gravity." — ^Whewell, ii. 115. 
** Halley has the glory of having first detected a periodic comet in the case 
of that which has since borne his name." — Whewell, ii. 182. This was in 
1705. His expedition to St. Helena in 1677 was at his own expense, to 
observe the southern stars. In 1698 he was appointed by William III. to 
the command of a smaU vessel, to make magnetical observations. — ^Whewell, 
iL 220. 

' History of Enffland, L 408. 

^ ** At the ordinary meeting on 29th April 1686, Dr. Vincent presented 
the Society with the ms. of the first book of Newton's immortal work 
entitled PhilosopIUcB Naturalis Principia Mathematical which the iUustrions 
author dedicated to the Society. It was not, however, published tiU 1687." 
—Weld, Hi^wry of the Royal Society, i. 307. 



198 LORD STAIR 

that office &om 1667 till his death in 1673/ contains a clear 
statement of its object He declares in it that he has adapted 
the style to the matter, and avoided rhetorical blandishments, 
which injure accurate disquisitions by which the judgment is 
to be inclined, and not the afifections ; '' finictus enim," he adds, 
in Baconian phrase, '' quaerimus non flores." Accordingly, the 
work possesses the true eloquence of directness and aptness to 
the matter in hand. Stair commends the Society for having 
resumed and promoted the study of nature, which had been 
almost despaired of — ^for the most pleasant exercise, and the 
fittest for the mind of man, is the contemplation of nature, in 
which the Divine wisdom, power, and goodness, are most 
clearly reflected. If so much admirable enjoyment, he ob- 
serves, is afforded by the sight of phenomena and effects, how 
much more will result from the contemplation of the wonder- 
ful chain of causes ! The investigation of these has been car- 
ried on with so much success, that in a few years more of solid 
natural science has been brought to light than in many cen- 
turies before. '' Me etiam," he continues, in a passage which 
the original Latin expresses with more dignity than a transla- 
tion, ''ardenset assiduum desiderium in naturae scrutinium allexit 
nee quicquam antiquius habui quam ut vobis in generoso vestro 
proposito inservirem quos vidi rectissinmm tramitem ingressos 
phfienomena abdita naturae omni industria primum prosequen- 
tes ut inde principia deducantur quae phenomenis omnibus 
quadrent et a nullo coutrarientur prudentes conditores imitati 
qui totam materiam congerunt priusquam fundamenta jaciunt." 
Principles, he continues, once asserted are not easily retracted. 
Hence the tenacity with which the Peripatetic hypothesis has 
been defended, notwithstanding of the efforts of Descartes, Gas- 
sendi, and others whose own systems, however, have the same 

^ Wodrow, L 275. " He was the truest and worfchiest man of that 
age, and was as another father to me." — Barnet, History qf Hia own TimeSf 
i. 355. 



PREFA CE OF PHY8I0L0GIA. i 99 

defects, for the doctrine of both schools is general and indistinct, 
does not exhibit special causes or the modes of causation, and 
consequently does not agree with the hidden phenomena of 
nature when afterwards discovered Gassendi has attributed 
all the phenomena of nature to the atoms of Epicurus, but 
both the powers of these atoms, and the substantial forms of 
Aristotle, are too general, and do not explain the special effects 
in nature. 

Descartes seems to be more special in his hypothesis of 
three elements, but that ingenious man denied aU power and 
efficacy to matter, and attributed all the effects of nature to 
God alone. Hence his physiology is reduced to the single 
proposition that all things are because God so willed, '' Quod 
lippis et tonsoribus notum est" His labour is in vain, there- 
fore, in supposing so many changes of matter by means of 
vortices and elements, for if God alone causes all things, why 
should he do so in a circuitous manner.^ As the more liberal 
learned admit that Aristotle may, in this department, be deserted, 
or rather that his work may be perfected, so it is to be hoped 
they will give up the Cartesian system, if principles more clear, 
special, and consonant to the phenomena of nature are affirmed. 
No blame is to be imputed to philosophers for missing dis- 
coveries which, once made, are obvious. It rather may be 
deemed a provision of Divine Providence for the solace of man 
that each age may have new inventions. The accidental nature 
of inventions and discoveries should lead us to ascribe the 
glory of these to God mainly. In support of this he refers 
to several of the notable discoveries and inventions of the 
age, which had been fortuitous — Harvey's ' theory of the cir- 
culation of the blood, Torricelli's experiments as to the sus- 

1 «Nam si solus Bens efficiat, quonum per ambages ?" 
^ As to Harvey's discovery, see Wliewell, Hittory of the Inductive Sciences, 
iii. 330. His '* Exercitatio anatomica de mota cordis et sanguinis" was 
published in 1628. Be8i4e8 the practical results of Torricelli's experiment* 



200 LORD STAIR. 

pension of mercury in a tube (from which the barometer re- 
sulted), Swjurt's invention of gunpowder, and the invention of 
the telescope {specula magnificantia). 

His own attempt Stair describes with humility^ as being 
merely to follow out some traces of reasoning to their legiti- 
mate conclusions : " mihi in magnis voluisse sat est." He 
thanks the Society for their public spirit in freeing philosophy 
from pedantry, the influence of authority and the restraints 
which theology had imposed on it. The absence of experi- 
ments had hindered hitherto the progress of natural science. 
Aristotle and the ancients had made none, Descartes and 
Gassendi few. He asks pardon for having himseK proposed a 
new corpuscular hypothesis ; this he has done not from ambition 
or vanity, but because it is the duty of man first to please God, 
and next to benefit the human raca 

In order to appreciate the Physiologia, we must have regard 
to the time when it was written. Natural philosophy was not 
then, as now, divorced from mental philosophy and meta- 
physics, nor were its own boundaries clearly determined. 
The great intellects of the age aspired to trace the scheme of 
the universe, to contemplate God, man, and nature in their 
essence and relations to each other. They were philosophers as 
well as men of science. So this work of Stair was but a part 
of a more comprehensive and ambitious scheme — a complete 
system of philosophy. His treatise was to have contained four 
inquiries concerning human knowledge, natural theology, 
morality, and physiology.^ But the first three were never 
printed, nor is it certain that they were ever written, although 
the Treatise on the Divine Perfections, afterwards published 
anonymously in 1695, may be a part of the Treatise on natural 
theology. 

it was of scientific importance in establishing the theory of the equilibrium 
of fluids.— Whewell, ii. 51. 

1 Dallas's SiUes, p. 152. Stair's contract with Anderson the printer. 



AXIOMS OF THE PHYSIOLOOIA. 201 

The Physiologia is divided into a series of chapters, styled 
Explorations, to indicate their tentative character. He regards 
it not as the chief science, but as subordinate to natural theology, 
metaphysics, and even to moral philosophy.^ 

The first Exploration lays down certain definitions and com- 
mon principles similar to the axioms of geometry, to be assumed, 
not proved. Nature is defined as matter both animate and in- 
animate, physiology as the knowledge of the phenomena of 
nature ; phenomena are all things which are perceived by the 
senses in bodies ; science is the knowledge of these phenomena 
by their proper causes specially and distinctly understood. 

The axioms or postulates are the following : — 

1. Nothing is admissible as existing in nature which is in- 
consistent with the infinite perfection of God. 

2. The objects or phenomena which we perceive are proved 
by the concurrent testimony of sense and reason to be real, and 
not merely phantasms. 

3. It is not inconsistent with the divine perfections that God 
should have communicated to His creatures a real activity and 
power of causation. 

4. Where diverse modes of causing phenomena are possible, 
that mode is to be preferred which is most consistent with 
divine wisdom. 

5. God does nothing in vain, and therefore does not multi- 
ply unnecessary substances (entia). 

6. There is no inconsistency in supposing that Gk)d could 
create an indivisible substance. 

7. That which is without perception is incapable of intrinsic 
power operating differently in different circumstances ; but if 
it has any intrinsic power, such power must operate necessarily 
and with uniformity. 

^ Physiologia non est prima scientia sed subaltema natural! theologiae 
metaphysicisque disciplinis qusd principia per se evidentia continent imo etiam 
philosophiae morali quatenos ostendit qnonsque in veritate nostrarum cogi- 
tationum aoqoiescere tenemur unde moralis certitudo oritur. — P. 11 



202 LORD STAIR. 

8. That which is without perception and the power of self- 
determination cannot move or operate with reference to any 
place, point, body, or end. 

9. Nothing can operate except where it is, or where there 
is an instrument of motion in connexion with it. 

10. A conatus and pressure to move may exist and con- 
tinue although the actual motion is impeded. 

11. The same part of matter cannot be moved or move at 
the same time in opposite directions, 

12. Whatever is not involved in the essence of a thing may 
exist apart from it. The perception of material objects by a 
bodily organ and perception without a bodily organ are distinct 
things, which do not involve each other ; and so the perception 
of spiritual and immaterial objects is distinct from either of the 
former kinds of perception. The several senses and instincts 
are also distinct from each other, and from the faculty of 
reason and will ; so there is no incongruity in the existence of 
animals which perceive by the bodily organs only — men who 
perceive with these, and have reason and will besides, and 
spirits who perceive both material and spiritual objects with- 
out bodily organs. 

He concludes this section of his work with a criticism of 
the Atomic and Cartesian physiology, and an explanation of 
the middle position his own occupies. 

The Atomists hold that matter consists of inflexible atoms ; 
the Cartesians that there is nothing fixed in the universe except 
their three elements.^ His own view is, that God, by creation, 
gave union and form (figure) to certain parts of matter, and has 
formed these into corpuscles, whose union no material power 
can separate — the form of some of these is fixed, of others 

^ The three elements of matter, aooording to Descartes, were (1.) minnte 
spherical particles; (2.) the filings rubbed off these by their motion; and 
(3.) denser particles less fitted for motion, or, as Stair names them, Olobuli, 
JULmenta, and Crauiora Corptucula ; see Descartes' PrindpUif j). 62, ed. Hart» 
Londini, 1644 ; and WheweU, ii 104. 



CRITICISM OF ATOMISTS AND DESCARTES. 203 

flexible ; but the greater part of matter has neither union nor 
form. The Atomists teach that all atoms and the whole mass 
of nature is imbued with the most diverse powers of motion ; 
the Cartesians deny all intrinsic power in nature. His own 
view is^ that God conferred a power to retain union and pro- 
mote motion upon certain parts of matter. The power given to 
some of these parts is merely passive; but in others (the 
animate creation) it is activa The Atomists assert that a 
vacuum is necessary ; the Cartesians deny its possibility. His 
own view is, that it is neither necessary nor impossible, but that 
God, of £[is good pleasure, might have created the world either 
with or without a vacuum. The new Atomic school, he observes, 
differs from that of Epicurus in recognising that the atoms 
were created by God, and were not eternal and uncreated. The 
Cartesians, by the denial of a vacuum simpliciter, in effect deny 
creation, and assert the eternity and indestructibility of matter. 
Yet he would not brand the acute thinker, who awakened the 
world from the dreams of the Peripatetic philosophy, with 
Atheism. Descartes, indeed, allowed that God could do every- 
thing possible, but he erred in his view of what was pos- 
sible ; and if he denied much to the Creator, he denied more 
to creatures, as he placed the sole power of motion in God, 
by whose will such and such thoughts were followed by such 
and such motions ; whence Malebranche had asserted that no 
conception or thought could arise either from extrinsic or in- 
trinsic objects, but only from God, these objects being present ; 
while other Cartesians converted the proposition of Descartes, 
and said certain thoughts were produced by certain motions. 

He closes this chapter by praising the Chemists as the first 
experimental philosophers, but notes that their science is a partial 
and subordinate contemplation of the effects of certain bodies 
acting on each other, like statics, hydrostatics, and mechanics ; 
whereas physiology embraces the whole phenomena of nature. 
Physiologists have hitherto been content with experiments, and 



204 LORD STAIR. 

have not proposed hypotheses, with the exception of Van Hel- 
mont, who had revived the theory of Thales, that water was the 
first principle of all things ; and Van der Beckt, a physician of 
Hamburgh, who developed that theory by supposing a sub- 
stance called Alcahest, by which air could be changed into 
water ; but of this substance he made a great mystery, alleging 
it was known only to himself 

In the second chapter Stair treats of matter, and further 
explains his corpuscular theory. 

The third chapter is devoted to the subject of motion and 
rest. While exposing the insuflSciency and want of distinctness 
in the Aristotelian and Cartesian definitions of motion, he 
declines himself to define it, and prefers to give an examination 
of its different kinds. In this examination, he follows the stiU 
common Aristotelian division of natural and violent motion, but 
corrects this division by pointing out that although there 
is (which the Cartesians denied) natural motion, the true 
distinction lies between voluntary motion caused by the self- 
determination of the individual moving, and violent motion 
which proceeds from an extrinsic cause. He discusses at 
considerable length the problem then much agitated, — why a 
body once set in motion continues to move when the cause of 
its motion ceases directly to act upon it This problem he 
resolves by an hypothesis of the action of the air as an unequal 
and elastic medium, to which he frequently recurs throughout 
his work ; so that a body once set in motion will continue to 
move by means of that medium, and in the direction of its 
least resistance.^ He appears in this hypothesis to attribute 

^ Newton's enunciation of the Iaw is, '' Corpus omne peneverari in statu 
suo quiescendi vel movendi in directum^ nisi quatenus a viribus impressis 
cogitur statum iUum mutare.*'— Prmctpto. It had been discoyered by 
Gfldileo, who, in his Dialogues on Mechanics, 1638, thus states it : — " Mobile 
super planum horizontale projectum mente ooncipio omni secluso impedi- 
mento ; jam constat ex his que fusim alibi docta sunt, illius motum equabilem 
et perpetuum super ipso piano futurum esse, si planum in infinitum ex- 
tendatur."— Whewell, iL 20. 



CONTENTS OF THE PHYSIOLOOIA. 205 

erroneously an active effect to the air, as producing or con- 
tinuing motion, instead of, as is truly the case, retarding it, and 
to have arrived less near the first law of motion than the Car- 
tesians, whose almost exact statement of that law he rejects, viz., 
that a body once in motion will always proceed in the same 
manner, that is, in the same line of direction, and with the same 
velocity and force, until acted upon by some external cause. 

His fourth chapter contains an elaborate essay on astronomy, 
in which, although much knowledge is shown of the writings 
of Ptolemy, Copernicus, Tycho Brahe, and Descartes, he must 
be ranked with those who rejected the theory of the sun as the 
centre of the planetary system. In the fourth of the seventeen 
propositions in which he explains his own hypothesis, he says, 
" Supponimus cyclum solis ita locatum esse in sphaera plane- 
tarum ut sol annuum suum motum circa terram spatio 365 
dierum et fere quadratu diei absolvat." His view is therefore 
valueless for the advance of astronomical science. 

In the fifth chapter, on gravity, he equally misses the true 
explanation of the phenomena afforded by attraction, and falls 
back on his hypothesis of the elasticity of the air. The re- 
maining chapters treat of special subjects in which the know- 
ledge of that age has been still farther distanced by the dis- 
coveries of modem times. In the sixth he discusses the pheno- 
mena of fire ; in the seventh of light, with regard to which he 
seems to have arrived at an indistinct notion of the undulatory 
theory, which had, however, been previously clearly stated by 
Hooke;^ in the eighth of heat and cold; in the ninth of 

^ Procedemus ergo ad tertiam opinionem quod nempe lumen non sit per 
Babstantialia efflnvia a lucido emissa Bed per motus radionun aetheris qao 
radii iUi vibrantar a motu corporis Incidi : opinionem banc prime ezplorabimns 
dein cnm oppodta comparabimns. . . . Ita prodnci et propagari lumen tenemus 
tarn a sole qnam ab aliis corporibns Inoentibus ubi nulla difficultas nee in mole 
efflnvionim neo in celeritate nee in spatio in quo effluunt et refluunt nam radio- 
rum ituB et redituB simul et Bemel perficitar et lumen yere in instanti per 
totam spbaeram lucis propagatur quorsum ergo commiBoendnm aliud corpus a 
lucido profluens ab aethere diyersum tot difficultatibus onnstum. — P. 344. 



206 LORD STAIR 

water, which is followed by two chapters on the sea and tides, 
and on springs and rivers. He then passes to what may be 
called the elements of the imperiect chemistry of his time, 
treating of oil, salt, fermentation, and the corrosion and solution 
of metals, but Ms knowledge of these subjects seems to have 
been slight. 

The six concluding chapters are devoid of that elegance of ar- 
rangement which generally characterizes the works of Stair, and 
are rather separate and somewhat crude essays on topics which 
belonged to the subject-matter of his Treatise, but had not found 
a place in the body of it They are on crystallization and con- 
gelation ; on specific spirits, an obscure phrase, by which he 
appears to have understood the corpuscles of which fluids 
(other than water) were composed according to his hypothesis ; 
on terrestrial corpuscles; on the air and atmosphere; on the 
vacuum ; and on the common qualities of matter. 

The Physiologia attracted some attention on its first appear- 
ance, and received a favourable notice in the review of Bayle/ 
It shows throughout independent thought and close observation, 
but fairly judged it is the work rather of an eclectic amateur 
of science than of a scientific genius. Although an inductive 
and experimental philosopher, he is hampered by the a priori 
theories contained in his axioms, few of which would be 
admitted by the modem man of science. It has been thought 
well, however, to give this slight sketch of its contents in 
order to exhibit an aspect of the mind of Stair which is little 
known. Probably his attempt was due to the early training 
of the student and regent at Glasgow, where, as in Scotch 
universities at the present day, a tincture of science was 
conjoined with the discipline in arts. This study of natural 
science was not without effect upon his legal work. For the 
lawyer, however imperfect may be his scientific knowledge, 
should cultivate the virtues of accuracy, candour, and clear- 

^ See Nouvdks de la RipubUqtte dea LeUrea, December 1685. 



PROSECUTED FOR TREASON, 207 

ness, in which the habit of scientific inquiry is one of the best 
trainings. 

Stair was not allowed to devote himself in Holland to the 
study of philosophy and law undisturbed by the political 
troubles of his country. His wife, we have seen, had been so 
harassed that she was forced to follow him to Leyden ; his son, 
the Master of Stair, had been fined and deprived of his ofSce of 
bailie of the regality of Glenluce in 1683. In the following 
year he was seized, without citation, when at his house of New- 
liston,^ near Edinburgh, and committed to the Tolbooth, where 
he remained three months, and was only liberated on giving 
a bond for £5000, Lords Lauderdale and Crichton being his 
cautioners. 

Application was made to the States of Holland to expel Stair 
himself from their dominions, but they refused to comply. 
Spies* were then sent over to seize him, but he eluded them, 
shifting his residence from one town to another, and apparently 
visiting Utrecht, but Leyden still remained his head-quarters. 

On 3d December 1684, the Lord Advocate, Sir George 
Mackenzie, was ordered by the Privy Council to raise a process 
of forfaidture for treason before the Duke of York and Par- 
liament against Stair, Lord Melville, Sir John Cochrane of 
Ochiltree, and several other persons.^ In March of the follow- 
ing year. Stair, and those associated in the same charges, which 

1 Fonntomhan, Hiat&riecd Notieet, 658. Decituma, L 303.--" Sir Jobn Dal- 
rymple's whole papen were seized on and himself committed close prisoner 
to the Tolbooth of Edinburgh, and his two brothers, Mr. James and Mr. Hew, 
are pnt under bayll to answer when called. The Hy Treasurer was incensed 
that Sir John would give them no discoyeries against the Earl of Aberdeen, 
and that by his father's retrait he had secured his estait from their grip. 
They caused bring him between a great guard of soldiers, in open daylight^ 
from the Abbey, on foot, to the prison, like a malefactor." 

* " When in Holland Russians were sent to seize him, but by Providence 
he made his escape to comers, diveHing himse^ vnth the conversation qf the 
eehoolmen and scholars o/the two famous UniversiUes qf Leyden and Utrecht,** — 
Impartial NarratiYe. Somers Tracts, Scott's Ed., zL 632. 

^ MS. Records of Privy Council, Register House, Edinburgh. 



208 LORD STAIR 

comprised accession to the rebellion of 1679, the Eye-House 
Plot, and the ill-fated expedition of Argyle, were fugitated for 
treason before the Court of Justiciary, but the record^ bears 
that " his Majesty's Advocate was satisfied that no Act should 
be extracted, nor letters of denunciation raised thereupon, 
before the 1 6th day of May next to come, in respect the foresaid 
persons were summoned at his instance to compear before the 
High Court of Parliament, on 15th day of May next to come, to 
answer to the cryme of treason laid to their charge, and declared 
that it shall be free to all persons to correspond with them in 
the meantime, in order to the said process of treason." Ac- 
cordingly, on that day the indictment for high treason was 
called and read in Parliament^ The Lord Advocate stated that 
some of the persons indicted had been already outlawed by the 
Justiciary Court, but he produced letters of relaxation in their 
favour, to the effect of giving them persona standi in jvdidoy 
that they might defend themselves before Parliament. Sir John 
Cochrane and several others were tried and forfeited, but the 
most of those charged, including Stair, were, by an Act passed 
on 15th June 1685, remitted to the Justiciary Court.' The 
reason for this does not clearly appear, but probably it was 
because the witnesses against them were not forthcoming. 

As regards Stair, Carstaires, whose deposition on torture 
before the Privy Council had been a chief item in the evidence 
led in Parliament, said only, '' The deponent spoke to Lord 
Stairs, but cannot be positive that he named the affairs to 
him, but found him shie; but the Earl of ArgUe told him 
he thought Stairs might be gained to them."^ This could 

^ MS. Justiciary Records, 16ih March 1685, Register House, Edinburgh. — 
FountainhaU, DeciawM, L 353. 

> Act. ParL yiiL App. 32. > Act Pari. viiL 490. 

^ See, as to Carstaires' depositions on torture 5th and 6th September 
1684, FonntainhaU's DecUkms, i. 30 ; but the substance of his depositions 
is there only loosely given, and I have taken the exact words with regard 
to Stair from the Depositions appended to the Indictments. — Act. Pari. viiL 
App. 35. 



EVIDENCE BY TORTURE, 209 

scarcely be deemed sufficient even by judges who gave the 
widest scope to constructive treason. 

Further evidence had been wrung, by the same infamous 
means, from Spence, Argyle's servant. He long persevered 
in refusing to make any discoveries. On 26th July 1684 
he had, after torture, been delivered to General Dalzell, 
who, it was reported, " by a hair shirt and pricking (as the 
witches are used) kept him 5 nights from sleep till he was 
turned half distracted." ^ On the 7th of August his thumbs 
were crushed with pilliwincks and thumbkins, a new inven- 
tion * brought by Dalzell and Drunmiond (who now sat con- 
stantly on the Privy Council) from Muscovy, and being 
threatened with the boots, he desired time, promising to de- 
clare what he knew. 

Accordingly, when next^ brought up before the Council 
he deponed that "Argile, Loudon, Campbell, late President 
Stairs, Sir John Cochrane, and others, had formed a design to 
raise ane army in Scotland, and to land at such convenient 
places as they hoped the people would joyne with them, and 
hoped, if they once gave the king's forces a foyll, they would 
get many to flock in to them, and had advanced money to 
this purpose." It is impossible to say whether any reliance * 
can be placed in testimony so obtained — nor is it of much 
consequence. There can be little doubt that whether he 
actively abetted it or not. Stair, as the other Scotch fugi- 
tives in Holland, would have rejoiced in the success of the 
expedition of Argyle. Of the other charges against him 
there appears to have been no evidence. Probably that of 
complicity in the rebellion of 1679 meant only that persons 

1 Foontunhairs Historical Notices, 545. ^ Foantainliall, ibid. 54S. 

3 Fountainball, ibid. 552. See also Fonntaiiiliall*B Decisions, i. 301. This 
^^'M on 22d August 1684. 

* FountainhaU says as to one of his former examinations, ** Yet all this 
while he discovered nothing ; and though he had done it, yet little credit 
was to be given as to what he should say at such a time." — Decisions, i. 299. 





210 LORD STAIR 

engaged in it had taken refuge on his estates. In the Bye 
House Plot it seems to be in the highest degree unlikely that 
he had any share. 

The trials before the Justiciary Court took place in De- 
cember:^ the libels were aU found relevant, and evidence 
having been led against James Stewart, formerly Provost of 
Edinbuigh, afterwards Lord Advocate, Sir William Denholm 
of West Shiells, and Mr. Gilbert Eliot, they were found guilty, 
though absent, and sentenced to be executed when appre- 
hended. 

No evidence, however, was adduced against Stair. A 
necessary witness. Sir John Cochrane, who appears to have 
been expected to turn king's evidence, not having come home,^ 
the proceedings were continued by successive adjournments 
until 1687, when they were altogether dropped. 

The cause of this was the appointment to the office of 
Lord Advocate,' on the 21st of January of that yesor, of the 
Master of Stair, who had made his peace with James, and 
succeeded to the office in place of Sir George Mackenzie dis- 
missed for refusing to consent to relax the penal laws against 



^ They had been cited at the pier of Leith, on 24th September 1685, on 
a citation of sixty days. — ^Fonntainhall, Dedaians, i. 370. 

' On 24th September 1686 Stair had been cited, on Sir John Cochrane's 
delation, to appear in sixty days before the Criminal Court. — Foontainhall, 
Deciauma, L 370. 2l8t December the case came on, and the same author 
observes, ** As for Stair they wanted one of their witnesses, viz. Sir John 
Cochrane, who was not come hom&" See also Wodrow, ii 231-2. 

' His patent, dated 2l8t January, was read in the Justiciary Court 2lBt 
February. 17th February 1687, at Priv> Council, Sir John Dalrymple is 
admitted King's Advocate, and by a special letter the test is dischai^ged to 
be administered to him, though this was not very necessary, because the 
king's letter for a toleration was also read, which discharged the test in 
general, and submitted a new oath in its place, and gave indulgence and 
permission to some of the Christian persuasions, viz., the moderate Presby- 
terians, Quakers, and Papists, and dispensed with the penal laws against 
them. — ^Fouotainhall, DecisUms, i. 448. MS. Justiciary Eeoords, Register 
House, 28th March 1687. 



PARDONED, BUT REMAINS IN HOLLAND. 211 

the Papists. On the 28th of March a remission ^ in favour of 
Stair and his family, to which was oddly joined a pardon to 
the young son of the Master, afterwards Field-Marshal Stair, 
for having accidentally shot his brother, was recorded in the 
books of Justiciary. The Master of Stair only remained Lord 
Advocate for a single year, when Sir George Mackenzie again 
returned to the office, which he held till the Eevolution. 

The cause of these sudden changes, Wodrow says he leaves 
" to the civil historians,** but none of them have given an ex- 
planation of it. The author of the Impartial Narrative, who 
is a professed apologist of the Master of Stair, gives the fol- 
lowing account : — " There being none of the advocates fit to 
be King's Advocate, the Court hoping to gain him to their 
party, and to wheedle his father over from Holland, made the 
Master King's Advocate (that being the time of the toleration), 
and during a whole year he continued King's Advocate there 
was none prosecuted to death but one man on the score of 
nonconformity. The Court perceiving the Master's behaviour 
in that post that year, intending to take another course by the 
dispensing power, and finding him not to be a fit tool for their 
purpose, brought in Sir George Mackenzie again to be King's 
Advocate, and they degraded the Master to be Justice-Clerk." ^ 

No palliation, however, can be admitted for the acceptance 
of office from such a Government. It remains a blot on the 
character of the Master of Stair, which, like the deeper stain 
of Glencoe, will never be removed from his memory. 

Stair declined to accept the proffered pardon, and con- 
tinued in Holland, — to return under happier auspices in the 
foUowing year. 

^ **He brings also home with him an ample and comprehensive remission 
of all crimes to his father, my Lord Stair, to his mother, his brethren and 
sisters, and particularly for their reset and converse with traitors, and to his 
little son, who accidentally shot his brother.'* — Foimtainhall, Decisions, i. 447. 

^ Somers Tracts, Scott's ed., ii. 553. 



CHAPTER XL 

1688-1692. 

stair accompanies William of Orange on his Tojage to Ehigland— Lands with him at 
Torbay— Remains in London daring the Convention of 1689, but takes active 
part in Scotch affairs— Proceedings of the Convention — Stair^s criticism on the 
vote declaring James had forfeited the Crown — Commissioners from Scotland 
sent to offer Scotch Crown to William — William takes Coronation Oath, and 
makes declaration in favour of toleration — Master of Stair Lord Advocate — Other 
0£BceTS of State--8tair appointed President of Court after death of Lockhart— 
His letter to Melville as to management of Convention— Parliament meets — 
Origin of the Club party, or the Patriots— Their conduct— Battle of Elilliecrankie 
— ^Votes carried by Club in Session of 1689, but not sanctioned by the Commis- 
sioner — One of these votes directed against Stair — Anonymous pamphlet in 
support of the votes— Stair urges that this should be answered — Stair's Apology 
— Created Viscount — Nomination of the new Session— Stair's account of their 
first meeting— His speech to the advocates — ^Letters to Lord Melville as to con- 
duct of the Club, and state of affairs in Scotland — Coolness between Melville and 
the Dalrymples— Stair's last letter to Melville, 80th January 1690— Parliament 
of 1690 — Its proceedings — Concessions of William — Stair member of Committee 
for Settlement of the Church — Measures passed for that purpose — Visitation 
of the Universities— Stair a member of Commission — Master of Stair super- 
sedes Melville— Proposal to embody militia — Stair's diplomatic conduct in the 
Council — His prosperity. 

Although Stair had the strong and happy but rare frame of 
mind which can pursue its studies and perform its work undis- 
turbed by adversity, and consoled his exile with philosophy, he 
was far from having abandoned an active for a meditative life. 
Whether or not he had been privy to the expedition of Argyle, 
it is certain that of the many British refagees ^ who then filled 
the cities of Holland, none threw himself more eagerly into 
the plans of William of Orange to save Britain from the arbi- 

^ Ab to the English at the Hague, see Macaulay, HUtory^ ii. 454 ; and 
at Utrecht, Life of Howe by Calamy, p. 146. 



'— — -'^— -»5i-^«- ■'» > ■ J ■^■-r. -V -, - ■, SPT" 



Z4i»rz)s TT/rjy william at torbay, 213 

trary rule of James IL and introduce a settled constitutional 
government He had been introduced to the Stadtholder at 
the Hague ^ by the Grand Pensionary Fagel, one of the most tried 
friends of William, the skilful adviser by whom his Declaration 
to the people of England was written. A few days before he 
embarked for his voyage for this country Stair had an inter- 
view with William which must have reminded him by its 
similarity and its contrast of his conference with Monk nearly 
thirty years before. As he had then pressed on the EugUsh 
General the necessity of a free Parliament, so he now asked the 
Dutch statesman what his true design in going to England 
was ? The prince answered that he designed the glory of God 
and the security of the Protestant religion, then in imminent 
danger. On which Stair, we are told, pidled off his wig, a minute 
touch which vouches the authenticity of the story, and point- 
ing to his bare head said, " Though I be now in the seventieth 
year of my age I am willing to venture that, my own and my 
children's fortunes in such an undertaking." ^ 

He accordingly embarked on 16th October 1688, accom- 
panied by his son the Master of Stair and his young grandson, 
afterwards Field-Marshal and French Ambassador of George i., 
in William's own ship " The Brill," * at Helvoetsluys. They 
landed on the 5th of November at Torbay on a calm morning, 
after encoimtering two storms, one off the Dutch coast, which 
forced the fleet to put back to Helvoetsluys, the other when in 
sight of the English shore.^ At the landing Stair's horse was 
not forthcoming, perhaps having been lost in the storm, and he 

^ ** Before the king had left the Hague Fagel had so efTectually recom- 
mended Dalrymple the father to him that he was resolved to rely chiefly on 
him for advice." — ^Biimet, History qf his Own TiineSj ii. 24. 

* Crawfurd*8 Peerage, Crawfurd had received materials from the Dal- 
rymple family. 

3 Dalrymplo*8 Memoirs^ p. 217, who, however, quotes erroneously Graw- 
fard's Peerage as his authority for the fact. 

^ For an account of this memorable voyage see Macaulay's History , ii. 470. 



214 LORD STAIR 

was supplied with a Neapolitan one from his own stud by 
William/ who from this time forward showed a firm Mendship 
to him and has family. Such constancy towards those who 
served him is one of the traits in which the great king con- 
trasts favourably with the fickle Stewarts. 

In the Scotch Convention of Estates in 1689 the Master of 
Stair took the leading part, but Stair himself was not a member, 
having remained in London during its sittings. It met on the 
1 4th of March, having been called together ^ by the Prince of 
Orange on the suggestion of the large body of the Scotch 
nobility and gentry, including Stair, then assembled in London, 
who held frequent meetings at the Ship Tavern in St. James's 
Street.^ Between this body, the supporters of William in 
Scotland and the prince himself, now chosen king of England, 
Stedr was the active intermediary. 

It was on his suggestion that the members of the Conven- 
tion were elected by a wider suffrage,* and that proposals for a 
settlement of the Grovemment under the prince as king of 
Scotland, and for a union of the two kingdoms, were at once 
brought forward.^ Few Jacobites attended the Convention, of 

* Crawfurd*8 Peerage ; Forbes*8 Prtface, p. 37. 

* Mr. Burton, History of Scotland, vii. 18, says : — "It was a Convention 
which had come together without the royal authority ; " but from the Record 
of its Acte it appears that it was called by circular letters from his Highness 
the Prince of Orange, under his hand and seall to the Lords of the Clergie 
and Nobility, and to the Sheriff Clerks for the several shires, and to the 
Town Clerks for the Boyal Burghs. — ^Act Pari. ix. 3. 

^ Balcarres Narrative, Somers Tracts, Scott's ed. xi. 502 : — " Every night 
after they were once gathered together they kept their meetings in St. 
James's Street^ in the Ship Tavern ; there they consulted what was next to 
be done both to get the Government in their hands and how to hinder aU 
others who were not of their party ; " and see also 504. 

^ *' Dairy mple, the late president, had artfully provided in the address to 
William that none but Papists should be excluded from the legal vote, and 
that the election should be conducted in burghs by a poll of freemen, from 
which, it is to be regretted, they have since departed." — Laing, ii. 184. 

^ The Scotch Parliament appointed Commissioners to treat concerning the 
Union on 23d April. — Act. ParL ix. 60 



SCOTCH CONVENTION, 1689. 215 

which the Duke of Hamilton was chosen President by a small 
majority in preference to the Marquis of Athole. 

The Convention, after taking the necessary measures for 
securing the peace of the kingdom, heard the letters read which 
had been addressed to it by the prince and by King James, 
but before opening the latter declared that, notwithstanding 
anything contained in it, " they are a free and lawful meeting 
of the estates, and will continue undissolved until they settle 
and secure the Protestant Keligion, the Grovemment, Laws, and 
Liberties of the Kingdom/'^ They then returned thanks to 
William for his letter, and to their countrjrmen in London for 
their address to him. As to the proposal for a union, they 
declared that they had no doubt '' his Majesty would so dispone 
that matter, that there may be an equal readiness in the 
kingdom of England to accomplish it as one of the best means 
of securing the happiness of these nations and settling a lasting 
peace." At the meeting of the 4th of April a resolution pro- 
posed by the Master of Stair was carried, by which it was 
declared that James had " forefaulted " the right to the crown, 
and that the throne had become vacant. The reasons for this 
vote were appended in fifteen articles, which were on the 11th 
embodied in the Declaration and Claim of Bight.^ 

It is characteristic of the difference between the father and 
the son that this expression of the forfeiture of the crown by 
James, which occasioned much remark both at the time and 
since on account of its difference from the English vote, in 
which the word used was " abdicated," was deemed by Stair too 
harsh. He writes to Lord Melville, who had been sent by 
William to Edinburgh to overlook the proceedings of the Con- 
vention, on 9th April : — " The vote of vacating the Crown is but 
preparatorie ; and the term of forfating the Eing^s right seems 
harsh, implying that the Conventione hath a superiority of 
jurisdiction, whereas the solid ground is that the King having 

1 1689^ c. 2, Act. Pari. ix. 9. » 1689, c. 13, Act. Pari ix. 38. 



216 LORD STAIR 

violated the constitution of the kingdom in both its sacred and 
its civil rights, the Convention, as representing the body politick, 
did declair that seeing he had violat his pairt of the mutaall 
engagements they wer Me of their pairt, for they could not fail 
on the on pairt without fredom to the other to liberat them- 
selves, and seing the violations wer so high as to refuse, reject, 
and renunce the government of the kingdom according to its 
trew constitution, and to assume a despotick and arbitrary 
government, nether he nor any come of him after that could 
have any title to reigne, and therefor disclaiming for King 
William and Queen Mary the administratione, being in them 
alone during his lyf. There is a great difference between dis- 
claiming or renuncing a government and other violations ; for 
that doeth lose the right, ipso /ado, whereas other violations do 
not, but only give the enjured liberty to loose themselves ; as 
adultery doth not dissolve a marriage ipso /ado, but gives the 
enjured libertie to loose themselves." ^ 

The same day on which the claim of Eight was agreed to 
William and Mary were declared in an Act, whose language 
resembles a clause of destination in a Scotch deed of entail. 
King and Queen of Scotland during their joint lives, and the 
longest liver of them, the sole exercise of the regal power 
being vested in William during their joint lives, and after their 
decease the Crown was to devolve on the heirs of the body of 
the queen, whom failing, the Princess of Denmark and the heirs 
of her body, whom failing, the heirs of the body of William * 
Immediately after the meeting adjourned William and Mary 
were proclaimed king and queen at the Cross of Edinburgh. 

It was, however, subsequently voted that the Government 
should continue as at present until they had accepted the offer 
of the Crown,^ and a list of grievances and an oath to be taken 
by the king and queen having been drawn, the Earl of Argyle, 

* Leven and MelviUe Papers, p. 9. ^ 

« 1689, c. 13, Act. ParL ix. 40. ^ Aot. Pari. ix. 41. 



WILLIAM AND MARY, 217 

Sir James Montgomery of Skelmorlie, and the Master of Stair 
were nominated as representatives of the three estates to pre- 
sent to them the Declaration and the grievances, and to take 
their oath.^ 

On the 11th of May in the Banqueting House at Whitehall 
William and Mary took the oath, which was read to them by 
Argyle in the presence of a number of the English nobility and 
all the Scotchmen of note then in London,^ a scene from which 
we may be sure Stair was not absent. When he came to the 
last words of the oath, by which he declared " that he was to 
be careful to root out all heretics and enemies to the true 
worship of God that shall be convicted of the true kirk of God 
of the foresaid crimes/' William required an explanation that 
persecution for religious opinion was not intended and made a 
declaration in favour of toleration. 

There had been a difference between the Commissioners as 
to the order of proceeding. The Master of Stair, a consistent 
opponent to the diminution of what he deemed the consti- 
tutional rights of the king, had proposed that the oath 
should be first taken, and the grievances, as well as an address 
which had been sent up by the Commissioners for turning the 
Convention into a Parliament, afterwards presented on the 
humble desire of the people.^ In this he had probably been 
supported by the advice of his father, but the order proposed 
by the other Commissioners was followed,* and the oath taken 
only after the Claim of Right, the grievances, and the address 
had been read. 

^ Their appointmeDt, 24th April 1689, Act. Pari. ix. 60. Their instruc- 
tions, 26th April, p. 62. ^Macaulay's History, iii. 290. 
'^ 3 Sir W. Lockhart, Leven and Melville Papers, p. 159. 

^ The Commissioners sent by you " have presented your letters to us, with 
your Letter or Claim of Right, the grievances, and your addresses for 
turning you into a Parliament, which were all read in our presence : after 
which the queen and wee did take and signe the oath tendered to us by your 
said Commissioners, which (by God's assistance) we shall religiously ob- 
serve." — William's Letter to the Convention, Act. ParL ix. 93. 



218 LORD STAIR 

The part they took upon this occasion was one of the charges 
afterwards brought against the Dalrymples, when the storm of 
unpopularity, whose origin we shall presently trace, burst over 
their heads. 

Amongst the ministry for Scotland, or Officers of State, as 
they were usually called, Sir John Dalrymple received the 
plcice of Lord Advocata This office, though not of the same 
importance then as now, was the highest open to a commoner. 
The Commissioner to Parliament was the Duke of Hamilton, 
chosen rather for his rank than his merit, and the Secretary of 
State, or Scotch Prime Minister, was Lord Melville, an honest 
but not brilliant statesman, who had been the companion in 
exile of Stair and the friend of William. On the death of 
Lockhart Stair was reappointed President of the Court of 
Session. "That shamefull murther of Sir (Jeorge Lockhart," 
he writes to Melville on 9th April, " towched the king much, 
and made him say to me he saw it now necessar that I sould 
resume my place againe, which I was willing, though it was my 
right that he sould enjoy, being younger and abler to endure the 
toyle than I." ^ A letter from him to the same nobleman two 
days later shows how busily he weus engaged in all the measures 
which were then on foot for the settlement of Scotland. 

" My dear Lord, — I recaved yours of the 4th instant, and 
I wrote to you evry post. The express was not dispatched be 
reason of the Coronatione, which was this day very splendidly 
performed. I desjrred the king to wrytt to you with his own 
hand, which he promised to doe, though he did not so to D. H.^ 
I had gotten a warrant for Lord Leven's regiment to march to 
Scotland by Chester, hot I thoght it unnecessar to bring a 
handfoll of strangers that way, and to retard the officers. I 
could not get it renewed for throng of this Coronatione, but I 
resolve to get it dispatched now. I hope the king with this 
express will invite the Conventione to levy, and send most 

1 Leven and Melville Papers, p. 9. * Duke of Hamilton. 



LETTERS TO MELVILLE. 219 

of them with Mackaye's partie to Ireland He seemed so 
inclined, if he be not diverted. I merveU the Conventione 
moved nothing of it to him. I am still of opinione that it is 
of extreme danger to adjoume or weaken the Convention by 
the offer of the Crowne, which, thogh it was solemne heir where 
some hours did it, is not necessar at such a distance be mor 
than one or tuo ; and in the meantyme the Conventione may 
go on to secure the countrye, and to order what remains. It 
may be some may keep things off that ther may first be made 
a Parliament which, how necessar or fit it will be till the 
King and Queene be crowned want not difficultie ; and there 
is no hope they will go to Scotland for that purpose. So long 
as ther is any hope of unione the Conventione is mor proper to 
declair against and annull encroachments than a Parliament 
You know how unwilling any was that did anything of import- 
ance as commissioner ^ to retume to ther former statione. I 
doe not thinke it prudent to urg thes who withdraw* to approve 
what is or sail be done; for though necessity make them 
comply it wiU but provock them mor, and if they see any 
hope, give them a fair pretence to breed trouble, especially at 
this juncture. I hope you will not forget to alter the oath of 
allegeance on heirs and to lay asyd the other oaths and acknow- 
ledgments on the first part of the test, and to qualifie tortur 
that it never be used, hot when there is one witness or half pro- 
baiione, nor the Utle Act in bulk, bot greatir import of vacating 
the settled Judicatories by cumulative commissioner. Hie 
bishops have so signalized themselves by oppositione that 
thereby and by withdrawing of their friends I hope they ¥rill 
not be weighty now. — My dear Lord, adieu." * 

He again writes from Hampton Court on 21st April: — 
"My DEiiR Lord, — I have frequently urged the dispatch of 

^ This meoDB, I presune, aU the leading ComnuBsionera to the Convention 
were in search of place& 

< The Jacobite members. ' Leven and MelviUe Papers, pp. 10, 11. 



220 LORD STAIR, 

this bearer. I did desyr the King might wrytt to you, which 
he promised, hot it was still delayed, till at last yesternight he 
was dismist with a letter to your son, hot non to yourseUl He 
came to me to Ham shewing the sam, and thogh it was this 
day I have attended most of the day and behoved to rest satis- 
fyed that the Earle of Portland sonld wrytt as from the "King, 
and sould invit you to come up hither, your advyce being so 
necessary at this tyme when places are to be setled, in which 
I forbear to move till you come. What the King will doe as 
to levies ther or sending money, which I urged all I could^ not 
only for levi money hot for taking off thos who might con- 
tinow or breed trouble, only he told me that he had sent with 
Mackay ten thousand pound. I said that might be for paying 
his pairtie. He said no, bot for extraordinar exigencies. It 
was thoght strange why ther was neither express messenger 
nor pacquet to signify the prodamatione of the King and Queen, 
and I think it very strange that the greivances are only pro- 
posed to be amended it seems be a Parliament; whereas if 
if they had been dedaired encroachments unwarrantable they 
needed no more bot the King^s approbation. 

" However it is very necessar that ther be some dispatched 
up that ther may be an end. I hope you would have been as 
thogh the King's call had not been ; but I thoght but to secure 
it, for I hear all the members are prohibit to leave the Con- 
ventioue without leave. — My dear Lord, adieu." * 

It was probably owing to the urgency of Stair that the 
Scotch Convention sent at once the Conmussioners to London, 
whose proceedings have been already noticed. The Conven- 
tion, apparently not satisfied with their conduct, appointed the 
Duke of Hamilton, Lord Boss, Sir Patrick Home of Polwarth, 
and Mr. William Hamilton to wait upon William to give him 
information upon some things expedient to be known ^ before 
the meeting of the Parliament ; but these Commissioners never 

^ Leven and Melville Papers, p. 14. ^ Act. ParL ix. 94. 



ORIGIN OF THE CLUB. 221 

went. One object of their appointment undoubtedly was to 
counteract the influence of Melville and the Dalrymples in the 
King^s counsels.^ 

The King by his reply to the letter of the estates, which 
contained his acceptance of the Crown, had complied with 
their request that they should be turned from a Convention 
into a Parliament, and accordingly the Convention was ad- 
journed on 24th May, and met on 5th June as a Parliament, 
presided over by the Duke of Hamilton as Royal Commis- 
sioner, who was thus kept in Scotland in a post of great 
dignity but little influence, in which he fretted at the advance- 
ment of Melville. 

This Parliament sat till 11th August, and: with the single 
exception of the Act abolishing Prelacy nothing of any import- 
ance remains as the result of its labours. No more fruitless 
Parliament ever sat in Scotland. This was a consequence of 
the proceedings of one of the most violent and unscrupulous 
Opposition parties that has existed in any country where 
parliamentary government has prevailed — a warning that par- 
liamentary forms may easily be abused, and that the claim to 
exclusive public virtue as well as the name of the Constitu- 
tional party may be made to cover party and personal ends. 
The formation of this party was due to two disappointed suitors 
for office — Sir James Montgomery of Skelmorlie, who had 
aspired to be Secretary of State for Scotland, and Lord Ross, 
who wished to be President of the Court of Session. Along 
with Lord Annandale and many members of Parliament, some 
of them, as Fletcher of Saltoun and Sir Patrick Home, moi'e 
honest than themselves, they organized what was called by its 
opponents the Club, and by its supporters the Country party, in 
contradistinction, not to the members for the burghs but to the 
Courtiers or King^s party, which Sir John Dalrymple, ably 
seconded by Sir William Lockhart, led with conspicuous busi- 

^ See LeTen and Melville Papers, p. 25. 



222 LORD STAIR. 

ness and oratorical talent^ but with an imperious temper not 
likely to conciliate his adversaries. The Club, which held 
stated and formal meetings in Preston's Tavern in the High 
Street in order to organize its conduct in Parliament, concerted 
a series of measures which were intended to limit the royal 
prerogative, and had in many respects a plausible popular 
aspect, but the future conduct of its leaders in allying them- 
selves with the Jacobites and plotting for the restoration of King 
James proves that the result of their success would have been, 
if not a despotic, at least an oligarchical government for Scotland. 
While the patriots were engaged in the struggle for offices 
and in plots Scotland had been all but lost to the new Govern- 
ment. The Convention sat in terror lest the guns of the castle 
held by the Duke of Gk)rdon might at any moment be turned 
on them. Dundee suddenly quitted Edinburgh, refused to return 
when summoned to answer the charges against him, and after a 
short rest at his country seat of Dudhope rallied round his 
standard the Highland clans. Mackay, a worthy man and able 
general, but unused to the irregular warfare of the hills, was 
despatched against him, and after a short and fruitless pursuit 
returned to Edinburgh. In a few weeks he again took the field 
with additional forces,-T>the three Scotch raiments which had 
served in Holland, one English, and two newly raised Lowland 
regiments. He was signally defeated on 27th July at Killie- 
crankie, where the bullet which killed Dundee turned the defeat 
into a victory, and decided in Scotland the revolution* in 
favour of William. The castle of Edinburgh had surrendered 
in June, and Dundee's army, deprived of its head, fell into 
disputes, and was speedily dissolved. " On the twenty- fourth 

^ The consternation in Edinburgh at the news of the battle before Dundee's 
death and Mackay's safety were known seems to me to justify this expres- 
sion, which I have borrowed from the Honourable L. MelvUle's Preface to 
the Leven and Melville Papers — a contribution of great value to the history 
of this period. See the Papers, p. 203, for the reception of the news in 
Edinburgh. 



FIVE POINTS OF THE CLUB. 223 

of August, exactly four weeks after the Jacobite army had won 
the battle of Elilliecrankie, that army ceased to exist/' ^ 

The Parliamentary opposition, directed by the Club, ad- 
dressed itself to five points, which it succeeded in carrying by 
a large majority of votes in the Parliament of 1689. 

The first was a declaration ''that no person should be 
entitled to any public trust, place, or employment who in the 
former evil government had been grievous to the nation by 
acting in the encroachments mentioned in the Claim of Sight, 
which are declared contrary to law, or had showed disaffection 
to the happy change of Qovemment/' The second related to 
the Constitution of the Committee or Lords of the Articles, and 
asserted the right of the Estates "to appoint Committees of 
Parliament of what numbers they pleased, the three Estates 
being equally represented, for preparing motions or overtures 
first made in the House, or that the House may conclude 
matters without remitting to any Committee or appoint several 
Committees if necessary, and that the Officers of State were 
not to be members of Committee unless chosen.'' The third 
vote, relating to the nomination of Lords of Session, directly 
struck at Stair, who had been nominated President by William 
on 22d October 1689. It declared that where there was a total 
vacancy in the Bench it should be filled up by the King's 
nominating fit and proper persons to be presented to Parlia- 
ment, to be tried and admitted or rejected, and " that the Presi- 
dent of the College of Justice shall be elected by the whole 
Senate thereof." There were other two important votes relating 
to the Bepeal of the Act of 1669, asserting the King's supremacy 
over all Persons and in all Causes Ecclesiastical, and for Sestor- 
ing the Presbyterian Ministers ejected since 1661 for not con- 
forming to Prelacy. None of these votes received the Eoyal 
assent, the Commissioner having refused to touch the Acts 
giving effect to them with the sceptre, and a remonstrance for 

^ Macaulay's History, iii. 377. 



224 LORD STAIR. 

this was addressed to the King by the Commissioners of Shires 
and Burghs.^ 

In support of this address an anonymous pamphlet was 
published in Glasgow the end of 1689, which has been variously 
ascribed to Ferguson^ the Plotter, and to Sir James Mont- 
gomery.^ It was entitled, " The Late Proceedings and Votes of 
the Parliament of Scotland contained in an Address to the 
King, signed by the plurality of the Members thereof, Stated 
and Vindicated." * 

The pamphleteer, whoever he was, made a fierce personal 
attack on Stair with reference to .his appointment as President. 
He charged him with illegally assuming that office on the 
nomination of Charles n. without the choice of the Senators, 
contrary to the Act 1679, c. 93,*^ and the uniform practice, 
except in the case of Sir John Gilmour, whose nomination, 
though made by the King, had been approved by Parliament. 
After asserting that '' his whole behaviour in that station was 
of one piece and complexion with his entering upon it, being a 
continued series of Oppression and Treachery to his country," he 
thus continues : — " for besides that aU his verdicts between sub- 
ject and subject were more ambiguous than the Delphic Oracles, 
and the occasion of the commencement of innumerable suits in 
place of the determinating of any, he was the principal Minister 
of all Lauderdale's arbitrariness, and of all Charles's usurpation. 
Nor was there a rapine or murder committed in the kingdom 
under the countenance of Boyal authority but what he was 
either the Author of, the Assister in, or ready to justify. And 

^ Address to the King. Pamphlets, Adv. Lib. 94, No. 21. 

^ Burton, History of Scotland from Revolution^ L 76, says : — '* This was 
attributed from its venomous tone to Ferguson, the celebrated plotter, who 
could not take up the pen without immediately dipping it in poison." 

' Sir John Dalrymple's Memoirs^ L p. 80. 

« Pamphlets, Adv. Lib. 94, No. 20. 

^ '* It is statuted and ordained that the President of the GeUege of Justice 
shaU be always chosen by the wholo Senators of the CoUege of Justice,*' 
1579, c. 93. 



LIBEL ON GOVERNMENT AND STAIR. 225 

from his having been a military commander for asserting the 
laws, rights, and liberties of the kingdom against the little 
pretended invasions of Charles L, he came to overthrow and 
trample upon them all in the quality of a civil officer under 
Charles IL Nor is there a man in the whole kingdom of 
Scotland who hath been more accessary to the robberies and 
spoils, and who is more stained and dyed with the bloody 
measures of the times than the Lord Staire, whom his Majesty 
hath been imposed upon to constitute again President of the 
College of Justice. And as an aggravation of his crimes, he 
hath perpetrated them under the vail of Religion, and by forms 
of law. . . . But there being some hopes that the World will 
be speedily furnished with the History of his Life,^ I shall say 
no more of him, but leave him unto the expectation and dread 
of what the famous Mr. Robert Douglas foretold would befall 
him in his Person and Family, and of which, having tasted the 
first Fruits* in so many astonishing instances, he may the more 
assuredly reckon upon the full Harvest of it." 

It was not a time when libels could be safely left un- 
answered, for although Dundee had fallen, a counter revolution 
was still in the air, and only waited for another leader. For- 
tunately no such leader was to be found. Stair was naturally 
desirous that the charges against the Government and himself 
should be refuted. " My Lord Staire and some others meat last 
night and perused it," Sir William Lockhart informs Lord 
Melville on 10th December. "He then thought it absolutly 
necessarie it shold be answered, and that seing his son, to 
whom properly it belonged, wold be considered a partie, he 
thought that I ought to take it in task. He very kyndly offered 
me his assistance in relation to the grounds ; but I was to venter 

^ I have not diaoovered to what ibis alludes. Probably tbe reference is to 
some satirical life of Stair, tben projected, but never published. 

* The reference is doubtless to the deaths of his daughter Janet, the 
Bride of Lammermoor, and his grandson, the elder son of the Master of 
Stair. See p. 81 f< aeq. 

P 



226 LORD STAIR 

on nothing of this kynd without your speciall advyse and 
aprobation, nor is it to be don without the King^s knouledge, 
because the author impudently asserts several things safd to 
the King be his ministers that are about him, which are no 
dout false ; and that he was invited over be Scots men, which 
I do not believe ; and yet we cannot contradict without the 
King's allowance, of all which matters, if your Lordship think 
the thing proper, we shall send you a more particular deduc- 
tion." ^ Stair himself alludes to it and some of the other designs 
of the Club against him in a letter to Melville on 1st January 
1690 : — "My Lord, — I receaved yours of the 27th of Januar, 
by which, and by the other letters with that packet, the King's 
coming to the Parliament is mor dubious, wliich hath imme- 
diatlie raised both the Jacobites and the Club very high ; they 
are now in better correspondence, and they say that D. H.' not 
being satisfyed in the post he is stated in, they have no fear 
from him ; they had little hop if the King cam after his con- 
cessions are evry wher known. And the great interest to beat 
the bottom out of the Irish Eebellione (which, if it sould 
continew a stated warr woidd have dangerous consequences at 
hom and abroad), made all believe the King would head that 
affair in person, thogh thes three leaders of the Club would 
mak men believe ther was no such thing intended to keepe up 
ther hop and humours. I do knowe no informalitie or defect in 
my electione,' yet Skelmorlie is on some project for a new elec- 

^ Leven and MelviUe Papers, p. 342. ' Duke of Hamilton. 

' This refers to Stair's election as member for the shire of Ayr, which 
had taken place on the death of the Laird of Blair caosing a vacancy. See 
the warrant for a new election to the shire of Ayr on Stair's promotion to be 
a Visconnt, Act. ParL iz. 112 : " Forasmuch as upon the death of William 
Blair of that Ilk, one of the Commissioners for the shire of Aire, there was a 
Commifltione granted by the Barones and freeholders of that shyre to the 
Viscount of Staire, there designed Sir James Dalrymple of Stair, to represent 
them in place of the said Laird of Blair, and there being another commission 
granted by a smaUer number of the freeholders of said shyre to the Laird of 
Bowallan, which was not subscryved by the Clerk of the Meeting." 



PUBLISHES APOLOGY. 227 

tione, thogh I cannot dreame of any Tationall pretence. Yester- 
day the Lady Collingtone presented an appeall to the Parlia- 
ment ; the Lords have done nothing concerning it^ hoping she 
will take it up. It will be thoght strange that from on so neir 
related to your Lordship the first blow against the Sessione 
should be given ; I sail not trouble youx Lordship with the 
cause. I wrott a lyn of it to my Lord Abruchle. I ador God's 
providence in permitting so much dust against me, thogh the 
matter (separat from the railing) imports nothing; bot my 
embracing first and last the statione God hath called me to, and 
the malicious ly of my being author, actor, or approver of the 
cruelties in the former reings, which your Lordship and aU 
unbyased and enformed men knew to be as fals as hell could 
make it ; bot I thank God I have the peace of my conscience, 
and I am confident your Lordship will bear witnecfs for me to 
his Majestia — My dear Lord, adieu." * 

Something seems to have prevented Lockhart from under- 
taking a reply to the libel, and Stair himself, instead of 
merely furnishing materials, composed the answer, in a small 
quarto pamphlet of eight pages, which he styled ** An Apolc^ 
for Sir James Dalrymple of Stair, President of the Session, by 
Himsel£" In refutation of the accusation of being a time- 
server, he appeals to his refusal of Cromwell's Tender, the 
Declaration enacted by Parliament in 1663, and the Test of 
1681. " Let my enemies," he exclaims, " then show how many 
they can instance in this nation that did thrice forsake their 
station, though both honourable and lucrative, rather than 
comply with the comiption of the time, or sign anything 
whence they had not clearness of conscience, as I have done, 
who quitted my station for the usurper's tender, and for the 
declaration and test." 

To the charge of subserviency to the Duke of Lauderdale 
in the evil things done during his administration, while defend- 

^ Leven and Melville Papers, p. 361. 



228 LORD STAIR 

iDg his memoiy as one who was most zealous for the honour of 
his country, a character which history cannot indorse, he replies 
that he joined in the representations which led Lauderdale to 
make several Acts of Council correcting abuses, and in par- 
ticular one which prevented the citation of persons accused for 
Church oflTences, without special circumstances of time or place ; 
and that he protested against the orders of Council for bringing 
the Highland Host into the west of Scotland, and for bringing to 
judgment the Presbyterian ministers who had kept conventicles. 

The pretended obscurity of his decisions, he urges, is due 
to the libeller's ignorance of law which made them so to him, 
and with just confidence he adds, " I may say, without vanity, 
that no man did so much to make the law of the kingdom 
known' and constant as I have done/' He appeals also to his 
publication of the Institutions, which had been so acceptable 
'' that few considerable families of the nation wanted the same, 
and I have seen them avendmg both in England and Holland ;" 
and to his promotion of the Act for bringing in processes in 
their order, *' whereas before all depended upon the arbitrary 
calling of the Lords as they pleased, so that every judge might 
call his own friends in his own week." 

As to the alleged prediction of Mr. Bobert Douglas, nothing 
can be more false and calumnious. Douglas had always 
expressed the greatest kindness and respect for him, as his 
widow was ready to prove. 

In conclusion, he refutes the only special matter charged 
against him, the acceptance of the King^s nomination to the 
Presidency without election by the Lords of Session, by a care- 
ful summary of the Acts of Parliament and precedents. At the 
institution of the Court of Session the President was chosen by 
the King, and he continued to be so till 1579, when a correctory 
Act was passed, on account of unfit persons being appointed 
judges during James vi.'s minority. Under this Act the right 
of nomination was in the King, but the Lords had power to 



^^s^^m^^mi^m^tmmi^im 



DEFENDS Hia NOMINATION AS PRESIDENT. 229 

admit or refuse. The manner of election of Urquhart, Elphin- 
stone, Preston, and the Earl of Haddington, was not extant in 
the Books of Sederunt. Sir James Skene was presented by 
Charles L, so was Sir Bobert Spottiswood, who continued in office 
. till the troubles, during which time the Lords named their Pre- 
sident every session. At the Bestoration, by an Act in 1661/ 
it was declared to belong to the royal prerogative to nominate the 
Lords of Session. In the exercise of this prerogative Sir John 
Gilmour was appointed without being chosen by the Lords, and 
upon his resignation Stair himself was named by the King, ad- 
mitted by Act of Sederunt of the Lords on 13th January 1671, 
and continued in office till 1681, when Sir Geoige Gordon was 
appointed in his place by the King, without any consent of the 
Lords. After Gordon was made Chancellor, Sir David Falconer, 
and after his death Sir (George Lockhart, were named Presidents, 
both by the King's letters. " But supposing/' he adds,* " the 
King had not the right to appoint, yet the disposition of him 
that hath no right with consent of him that hath right is as 
valid and sufficient a right as if the consenter had been disponer, 
and therefore the Lords' consent to his appointment leaves no 
room for quarrel" "And now, after all this," he concludes, 
" I appeal to the conscience of all just and unbiassed persons if 
this libeller hath any just pretence that I betrayed my country 
by accepting to be President of the Session. I hope those that 
have charity that men may aim at the service of God and their 
country more than their own interest, will not conclude that my 
own interest was the chief motive that made me resume so 
heavy a burden in my present circumstances."* 

The Apology will be deemed on almost all points, by 
impartial judges, a complete defence of Stair. Perhaps the 
only exceptions which can be justly taken to it are the lauda- 
tory reference to Lauderdale, and the account given of the part 

^ 1661, c. 2, and c. 11. ^ Of. InsL il 11. 7, and iii. 2. 8. 

3 ApoUxjyy printed in J. S. More's edition of Stair's InslUuUons, 



230 LORD STAIR 

Stair hiinseK took in the secession of the advocates, which, as 
has abeady been shown, cannot be accepted as the whole truth 
with reference to that transaction. 

Shortly after the publication of the Apology he received 
a distinguished mark of royal favour by being created a 
Viscount. His patent as Viscount of Stair, Lord Glenluce 
and Stranraer, was read in Parliament on 1st May 1690.^ 
His appointment as President of the Court had been made 
on 22d October 1689, and he had been admitted by a unani- 
mous vote of his brethren on 2d November of that year.' 
The Books of Sederunt record that the Lords having elected 
Lord Newbyth Vice-President, " unanimouslie and heartily 
acquiesce in their Majesties nomination of the said Sir James 
Dalrymple of Stair to be President, as a persone most worthy 
to discharge that trust, and declares that if it had been 
absolutely at their disposal they would have elected and choosed 
him constant President."' This acquiescence was not wonderful, 
as most of the Lords had been appointed on Stair's recommenda- 
tion. The following is his account to Lord Melville of the 
first meeting of the new judges, which apparently took place the 
day after his arrival in Edinburgh : — " All the persons nomi- 
nat on the Sessione mett My Lord Crafurd, by the warrant 
contained in the nominatione, produced it. That which cam by 
the flying pacquet was only made use of. There was non absent 
but Stevenson ; all did heartily imbrace. The three appointed 
to try the qualifications did accordingly read the Acts of 
Parliament bearing the qualificationes requirit for the Lords, 
and removed each of thes that were in the additione in order ; 
and all that war approven joyned in examining the subsequent, 
and all were unanimously fownd qualified according to the Acts 
of Parliament ; whereby there was a quorum of nyn approven 

1 Act Pari. ix. 112. 

^ See List of Session in Leven and Melville Papers, p. 307. 

3 MS. Books of Sederunt, Register House, Edinbni^h, 2d November 1689. 



VISCOUNT AND PRESIDENT OF COURT 231 

who did authorise two of their number to exam the fyve first 
nominat upon ther own desyre and submissione to tryel; 
becaus be the tenor of the nominatione the first fyve wer 
acknowledged to have been admitted^ and so could not be tryed 
as intrants without ther own consent ; and therefor, according 
to the ordinar and regular custom of sessione, two wera 
appointed to try and report, which reported that all the fyve 
wer qualifyed. This day, the report being made and fotirteen 
approven, Crawfiird was again called, who took the oath of 
allegiance of these new last named, and the rest desyred to 
renew the same, which was done accordingly, and inmiediately 
the Lords in their robs tok ther places, and entered upon 
ther charge. Ther was a pargment scroll prepared, wherein 
all did subscryve the oath of alleagance ; and thes who were 
not restored took the oath of de fideli administrationa Upon 
occasion of the fyve Lords submitting to tryell, I told the Lords 
that tho' I was restored be way of justice according to the 
King's declaratione, yett I was willing to submitt myself to the 
Lords, that if they wer not satisfyed that I sould resume that 
heavy charge, I would not in so disquiet a tyme, and in such 
an age, subject myself to so much trouble and toyl, and thereon 
I removed. Upon which they did all unanimouslie vote that 
they did acquiesce in my nominatione at first to be President, 
and in the Eing^s renewing it and restoring me; and did 
declair that if the King had left it to them simplie they would 
all choose me; and did consent to the nominatione already 
made. This will take of pretences to make noyse in Parlia- 
ment I must say there was never so good a constitutione of 
the Sessione, being all persons of considerable interest, and 
natural abilities, and most of acquyred skill, and men of 
integrity. I hear of no noyse as to this matter. I know not 
what some that ar on ther way may kendle. I hope when 
people fall about ther privat affairs, and see the King in sic 
splendour of his renge, they will be less taken up with State 



232 LORD STAIR 

matters. I dowbt not bot er this come to your hands all the 
other publick affairs will be dispatched which is most neces- 
sary. That which grieves me much is Stevensones demurring, 
from no ill principle I am sure; bot from his modesty and 
opinione of his unfitness, never having applyed himself to law. 
I have endeavoured to tak off his grownds, and this day 
Amiston, Anstruther, and I reasoned fully with him. He will 
give you an accompt himseK ; bot we left at this, that if the 
King did insist, notwithstanding his pretended inhabilityes, we 
would not doubt bot he would comply with so gracious a 
Prince, to whom he has all allong showne the greatest affectipne. 
The greatest difficultie I find heir is, that ther is no more fownde 
to pay the forces, and it will be very inconvenient to disband 
most of them at this tyme ; but if the King would desyre thre 
regments at least to be sent to Holland, wher that number 
hath always bein of Scots since they wer a Commonwealth, to 
remain ther till all were settled, at which tyme the old 
regments might returne, and would send part of the rest to 
Irland, ther would be persons found to advance money for 
their pay, on privat credit, for six per cent, till the fitt tyme of 
their transport in the spring ; bot when ther is no solid ground 
for ther repayment, it is not to be hoped any will advance. — 
My dear Lord, adiew,"^ 

Strenuous efforts were made by the Club and the Jacobites, 
when they found their attempt to prevent a new nomination of 
the Session, and to keep the Signet shut, had fSedled,^ to dissuade 
the advocates from attending the Court; but on the 12th of 
November Sir William Lockhart writes to Melville : " The Lords 
having appointed this day for the advocates to attend, ther 
did apeir in the guns of the ablest to the number of 24, 
who are sufficient to serve the hedges ; but, my Lord, to speak 
plainly, I fear much more the warU of monay than lawerd to 
receive it, and am sadly apprehensive our number will double 

^ Leven and Melville Papers, p. 313. 

^ See Burton, History of ScoUund from Bevolulion, 1. 71. 



DEFEATS SCHEMES OF CLUB. 233 

befoi*e Saturday. The President called us in, and mad us a 
very kynd, discreet discours, extreimly satisfying to alL Maters 
heir are in grat quietness and order; only from London we 
have several! accounts that you think ther the mobilie^ will 
raise the Session, and that we are to have protestations for 
remeide of lawe ; but if the Club have nothing else to look to, 
I aprehend they wUl be much disapointed, especially if the 
King cause use those who aime att Club lawe with you as they 
deserve."* 

Two letters from Stair to Lord Melville, towards the close 
of this year, bring before us another device of the restless 
opposition to render government impracticable, and a simple 
but ingenious expedient by which it was defeated, it is' 
probable on the suggestion of Stair. 

"£dn., Dec. 5, 1689. 

"My deab Lord, — I saved yowr Lordship the trouble of 
wrytting immediately to yow whill my son was there; but 
now, I suppose, he will be on his way er this come to your 
hands. You will sie by the Counsell's letter what hath been 
done by them since I cam to this place. Your freinds thoght 
fitt to give the full vein of what was done, and the state of 
affairs, befor others that were cuming downe did come, to whom 
all might be attributed. We must not want a Club even in 
the Counsell, wher two or three retard us, and refuse both to 
vote and to signe when they please. It had been of late 
accustomed to bring all in equall condition of what was done, 
to cans all signe every thing of moment, which custom did 
oblige all to signe thogh ther vote wer contrair, and yett ther 
subscriptiones did not import ther vote to have been affirma- 
tive, bot only that the pluralitie of the Counsell was for the 
affirmative; bot seing thes refused to signe bot when they 
pleased, the king's service behoved to be made ineffectual, seeing 

^ The word mob seems not yet to have reached Scotland. Macaolay 
remarks, Hiatwry i. 256, on the authority of North's Examtn, that it was 
first heard in England in 1679. 

^ Leven and Melville Papers, p. 322. 



234 LORD STAIR 

if the Counsell wer bot a quorum of nyn, thogh eight were 
affirmative, and bot on negative, it wer not an Act of Counsell, 
and so every on had a negative. Therfor the Counsell enacted 
that the President only sould signe. Some made a great 
attempt for an adress to the King to call the Parliament sooner 
than March ; but we broght it only to a modest significatione 
that we wished the king's af&irs might soon allow the antici- 
patione which he mentioned in his proclamations which tooke 
the others off ther separat adress, and will allay the keinness 
of others against that adjumment. Things goe well on in the 
Sessione, and ther is work enough. Some attempts wer mad 
against Mr. Justice to be clerk, on Kory M*Kemrie's demissione, 
and opposed the passing the gift, bot it was carried over them, 
and he is to be admitted be the Lords to-morrow. On occasion 
thereof, the Lords resolved that they would represent to the 
King the grant of King Charles, that the Lords might present 
fitt persons to be ther Clerks to the Lord Eegister, and modifie 
suitable gratificationes which by the sic clerks would make a 
nursrie for Lords better much than taking Advocats from the 
barr, who knew little what was don within dors, and wer 
long er they would forget their clients; but nothing is yet 
done in it. My Lord Cardross beheaves well and wysly in the 
Counsell ; and the benefit of the coynage being of late much 
Umited, wiU not be able to support him, especiaUy if his 
regment wer disbanded. If, therfor, he wer in one of the 
commissiones, a little addition might make him well, and truelie 
I see few we hav lyk him. Ther is a letter of the Counsell in 
favour of the Master of Cathcart. I entreat your Lordship to 
help him in it. You know their familie is low, and two upon 
it ; and I may say ther is not a man in that countrye hath a 
greater influence ther, and is both forward and able to serve the 
King. The Major is a bred souldier, was four years in Dum- 
bartans regiment, and ther is on of the oldest Captains that 
was six years in the same regiment ; few of our new forces 



LETTERS AS TO VOTING IX COUNCIL. 236 

ar so well provyded. The harmonie and kyndnes amongst 
your friends heir, I hope, will both advance the king's service, 
and be for your credite and security, which sail always be 
endeavoured by me and myne. — My dear Lord, adieu,"* 

In the second letter, Stair writes on 12th December : — 

" My Lobd, — I suppose my son will be on his way er this 
come to your hands. I did wrytt formerlie to him to be pro- 
posed to your Lordship, now I must give you mor trouble by 
wrytting to yourself immediately, thogh for most pairt I will 
tell my thoghts to your sones, with whom I have keept and will 
keepe a closs correspondence, and our common interest will 
requyer it mor and mor. We had fashrie of bot a few in the 
Counsell, who would bot vot when they pleased, and signe when 
they pleased, so that we had difficulty in getting a signing 
quorum. It was bot jimp at the passing the proclamatione for 
an adjumment ; and for want of it the opening the Signet was 
marred the first tyme. Tho' ther were a quorum present and 
voting, yet ther were bot eight affirmative and willing to sign. 
Heirupon the Counsell latlie, after long debate, insisted that 
in all cases the President of the Counsell sould only signe in 
praeserUia dominorum. Our reason was, that as the king's 
service could not be carried on, for a Counsell of sixteen (which 
was mor than the ordinar number) might deliberat and vote 
bot to no purpose, because nyn would not signe yea, a Counsell 
of nyn, which is a quorum, could doe nothing unless all agried, 
and so every on had a negative ; therfor either all behoved to 
signe tho' ther opinion was contrair, or els the President only. 
The signing of aU did not import ther own opinion, bot the 
opinione of the Counsel! What a strange thing would it be to 
sie a large quorum of the Counsell, and bot a few signing ; so 
the vot past that in all cases the President sould only signe. 
This day the D.,' being his first sederunt, refused to signe alone, 

^ Leven and MelvOle Papers, p. 339. * Duke of Hamilton. 



236 LORD STAIR 

and said it was the custome of the Gounsell that it was necessar 
nyne sould signe, and said he would not It was at last 
resolved the King sould be wiytten to to know his pleasure, 
which must be quicklie dispatched, or most thing will stick. 
To ordain all to signe will disgust many, bot that the President 
only signe will bot displease on who will not stick at it if it 
be the king's pleasure. — My dear Lord, adieu. 

"Tho* the D. sometymes refused to sign when he was 
negative, the ordinar custom was that all signed als well 
affirmative as negative."^ 

About this time we find Stair again occupied with the care 
of the Begisteis. Scotch lawyers often express their pride in 
the perfection of this part of their legal system. It is well it 
should be known how constantly the attention of the heads of 
the profession in the seventeenth century had to be directed 
to them in order to produce this perfection. " My Lord," he 
writes to Melville on 17th January 1690, "I have receaved a 
commissione directed to the Earle of Southerland, to your 
Lordship, and to the Advocat to take Tarbett's oath that he 
hath not embazled the Registers, with his oath therupon. The 
Lords have appointed some of ther number to take inspectione 
of the registers, as was done when Glendoike cam in place of 
Caringtowne. Ther is yet no warrant to give Tarbet an 
exoneratione. Ther was a letter of the King's at the tyme to 
inventer the registers, to receave and deliver them, and to give 
exoneratione. The Lords have ordered that I sould give notice 
heirof to your Lordship that if you see it fitt a letter may be 
sent by the King to give exoneratione to my Lord Tarbet, and 
to inventar that pairt of the registers that is come in since the 
former inventar, which is insert in the books of Sessione, which 
will be very convenient for preserving the registers, and letting 
the lieges know wher they may find such registers as they 
need to make use of, whereof the ignorance cost many dear, 

' Leveu and Melville Papers, p. 346. 



OARE OF THE REGISTERS^ 237 

being necessitat to give great compositiones for finding out and 
extracting ancient wrytts. Ther is litle news heir. I know 
you will get news from your friends heir. I am holden so hard 
to work that I have little tyme, only the heads of the Clube are 
come doune full of humour and dissatisfactione. All things 
done heir in the King^s service ar under the most sensorious 
observatione. The best expedient I know is that the donative 
to the Ministers wer sent doune that they might be ordered to 
meet for ordering it, and then they may be put to it whether 
they will franklie tell their mynd that thes animosities of thos 
who pretend great influence upon them may be lad asyd, 
which certainly would lay them low. Ther ar some appearances 
and much r&port thai {hey are playing in with the Jacobites ; 
two of them in Counsell wer zealous to set Dunmor at liberty 
on cationa We are in great hop of the King's coming. — My 
dear Lord, adieu." ^ 

The differences which arose between the Dalrymples and Lord 
Melville, and the causes which led to the latter being superseded 
in the following year by the Master of Stair in the government 
of Scotland, have not yet been satisfactorily explained, but the 
following letter from Stair in the b^inning of 1690 shows that 
the coolness was of considerable duration. About the same date 
there is a marked change in the tone of the Master's correspond- 
ence with Melville. "My Lord," writes Stair on 21st January, 
''I was not a little surprised upon the sight of a letter of 
yours to my sone, bearing that your Lordship had information 
of somthing concerning him or me that yow would not believe 
till you heard it from some of us, which you would not express, 
bot that we might easily know what it was. All I can con- 
jectur is that we ar either diffident of your freindship or dis- 
obliged. I have lived with you in the intimatest freindship for 
many years, when we had nothing to divert us from dailie 
convers with the fullest sincerity and open-heartedness imagin- 

^ Leven and MelviUe t^apers, p. 373. 



238 LORD STAIR 

able, and God knowes I never had distrust of your freindship 
or kyndness, nor did I ever show any such thing to any ; thogh 
I have been belaboured to beleive the contrary I never did it, 
and I sould conclud that ther could be no trust amongst men 
if either I sould be diffident of you or you of me. You know 
how much it hath been the endeavour of our common im- 
freinds to breed divisione or jealousie amongst us. It hath 
still been the persuasione and mutual resolutione of my son 
and me to be subservient to you with all we are able to doe, 
being convinced that it was the interest of honest men, and 
that any alteratione as to you would certainly caiy the same 
effect as to us. That malicious lybell latly printed, and all of 
that sort put us into one scale ; but when it maks so bold with 
the best of kings I am less concerned, thogh I hope all thes 
calumnies will be dissipat, and that I and my son ar so ruif at 
may very evidentlie shew it is an imreserved faithfulness and 
forwardness for the King, in whois justice and goodness I have 
so full confidence that I rest in the peace of my conscience 
upon it. Tour friend Aberuchell, who goeth hence to-morrow, 
will shew you what harmonic is in the Sessione, not the least 
appearance of factione or parlying which I have sen and felt 
in former tymes. I am confident the natione was never better 
provyded in judges. It is very happie that the King comes, 
without which I dar not yett say things will goe welL — My 
dear Lord, adieu." ^ 

Only one more letter from Stair occurs in Lord Melville's 
correspondence, and though Melville's visit to Scotland, where he 
opened the Parliament on 15th April 1690, in part accounts for 
this, it appears highly probable that another reason was the 
abatement of their intimacy. This letter shows the anxiety of 
Stair that William should have come himself to open the 
Parliament, but although the meeting had been several times 
adjourned for that purpose, the pressure of English affairs and 

^ Leven and Melville Papers, p. 379. 



COOLNESS BETWEEN HIM AND MELVILLE. 239 

the more urgent necessity for his presence in Irele^d prevented 
his coming/ " My Lord," Stair writes on 30th January, " most 
men heir ar now come to believe that the King will come to the 
Parliament, thogh not so soon as the firat of March, but some 
time in that month. There must then be a proclamation for 
that purpose, and considering the povertie of this nation at this 
time I think it wer very convenient that therein the Sump- 
tuary Act should be peremptonlie enjoyned, and that the King 
would cause those of his household observe it, and recomend it 
to others that come with him, and I conceive it will not be 
imacceptable to him. If it be not all her will vye with the 
English, and it will cost more then the subsidie the King 
will require. Boss and Skelmorlie are gone west, and have 
ciearied great quantities of their scandalous Pasquil against the 
King and his servants. There was a second edition printing 
heir by one Beid, but it is sezed on, and he in pnsone; an 
answer to it were very fitt I hear Skelmorlie is to cause a 
new election in the shire of Ayr ; I know not how, but I guess 
he will doe it upon his call as Commissioner. It is trew the 
Commissioner of a former Parliament may cans an electione be 
made for a subsequent Parliament, but ther is no such warrant 
for a current Parliament, which, having no present Statut, must 
be by the ancient common weal by the Court of the Sheriff, 
which is done in my electione, wherein wer thirty-six for me 
to nynten for Eowallan, not in a separat meeting, hot all 
having voted in on body. The Club men went apairt, and 
gave a vote for Eowallan. There was no formality wanting in 
my election, which on my own accompt I would not have 
wished, becaus it heightens animosity of thes men against me ; 
bot on the public aocompt ther was much want of thes could 
balance the long speeches of the Club, for which it was thoght 
fitt that Fountainhall suld also be chosen for Hadington, which 
is not lyk to hold. I find by the common opinion heir that if 

^ See Melville's Speech to the Parliament, Act. Pari. iz. App. p. 38. 



240 LORD STAIR. 

the King use the English service heir it wiU give great discon- 
tent. If some of the English Presbiterian ministers were to 
cum doune with him they might have great influence on our 
ministers heir. I wrytt freely to your Lordship what falls in 
my thoght thogh you never wrytt a word in particular to me. 
Be all means bring Mr. Carstaires downe with you, whois 
prudence may be of much use. — My dear Lord, adieu." ^ 

The Scotch Parliament in its first session of 1G90 did im- 
portant work. William proved in statesmanship, as in general- 
ship, a leader who, if he seldom won a battle, never lost a 
campaign. The edge was taken ofif the Club's opposition by its 
demands, so far as reasonable, being conceded.' The right of 
Parliament to appoint committees on special subjects was 
acknowledged. The Committee of the Articles, which, though 
its services to legislation in earlier times cannot be denied, and 
in an altered shape it might form a safeguard against the slip- 
shod legislation of the present day, had become in Scotland a 
tool in the hands of tyrannical Governments, was abolished.' 
In its place separate Committees were appointed for contro- 
verted elections, the settlement of the Church (of which Stair 
was a member), supply, and fines and forfeitures.* It was also 
declared that while there should still be a Committee to con- 
sider all motions and overtures brought into the house, con- 
sisting of an equal number of each Estate, the Estates were to 
have full power to treat, vote, and conclude upon any matter 
they pleased without referring it to this Committee. Some of the 
Officers of State were still to be members of all Committees, but 
without the right to vote. An addition of twenty-six members 
was made to the representation of the counties. The Act of 
Supi-emacy of Charles n., by which the King had been declared 
supreme over all persons and in all causes ecclesiastical, was 
rescinded ^ as inconsistent with the form of Church government 

^ Leven and MelvUle Papers, p. 3S7. ^ I^ix^g* ii> 215. 

3 1690, c. 3, Act. ParL ix. 113. « Act, Pari ix. 114. 

* 1690, c. 1, Act. Pari. ix. 111. 



SETTLEMENT OF THE CHURCH. 241 

now desired. The Presbyterian ministers, who had been ex- 
pelled from their churches since 1 st January 1661, were restored.^ 
The Westminster Confession was solemnly read word by word 
in presence of the Estates, and its approval voted, but no test 
was imposed, except upon the Professors of Universities.^ The 
Covenant, which had been the watchword of so much strife, was 
not re-enacted, and the severe laws against conventicles of the 
preceding reign were repealed. 

But the form of Church government was not yet settled, and 
much anxious care on the part of the Committee and the personal 
supervision of William was necessary before that thorny point 
could be adjusted on a moderate basis. The result of the deli- 
berations of the Committee were two Acts, by the first of which 
the Confession of Faith was ratified, and Presbyterian Church 
government by Kirk-sessions, Presbyteries, Provincial Synods, 
and General Assemblies re-established^ The details were 
wisely left to a General Assembly, which was appointed to be 
held in Edinburgh on the third of October.* 

The second Act,^ passed at a later period of the session, 
regulated Patronage on the footing that the right to appoint 
ministers should be vested in the heritors and elders of each 
congregation, who were to propose the minister selected to the 
whole congregation, which might appeal to the Presbytery if 
they disapproved for reasons assigned. The patrons were, how- 
ever, to be compensated by a small payment of 600 merks 
from the heritors, and although Patronage was nominally 
abolished by the Act, this provision not having been taken 
advantage of, it was restored in the reign of Queen Anne,* and 

1 1690, c. 2, Act. Pari ix. 111. « Act. ParL ix. 164. 

» 1690, a 6, Act. Pari. ix. 133. * 1690, c. 5, Act. ParL ix. 134. 

fi 1690, c. 23, Act Pari. ix. 196, 19th July 1690. 

^10 Anne, c. 12, declared that it should be lawful to aU patrons who had 
not exercised renunciation under the Act of WiUiam to present as formerly. 
But only four parishes, Calder, Old and New Monkland, and Strathblane, 
bought up the right. 

Q 



242 LORD STAIR 

still continued to vex the Church with divisions and secessions. 
The right of teinds not heritably disponed to the proprietors 
was declared to belong to the patrons, under burden of the 
minister's stipend, and an obligation to sell to each heritor the 
teinds of his lands so acquired at six years' purchase. 

A Commission for the Visitation of the Universities, of 
which Stair, the old Glasgow Begent, was naturally one, was 
nominated in this Parliament^ It is a striking circumstance 
that almost all the varied experience of his earlier years found 
in after life an opportunity for its exercise. It was his good 
fortune to realize the hopeful, but not always true saying of the 
poet, that our youthful wishes find their fulfilment in old age.^ 
As now his knowledge of University management was service* 
able, so his military training enabled him to take a knowing 
part in determining what forces should be sent to and kept in 
Scotland by the new Government ; while the diplomatic skOl 
he had gained in the n^otiations with Charles had an ample 
field in the difficult conduct of Parliamentary business. 

The minor Acts of this Parliament were not of much con- 
sequenca The only ones worthy of notice were that which 
improved the law as to the sale of bankrupts' lands, allowing 
it to take place without the consent of the debtor ;' the Act 
which declared the concealment of pregnancy murder;^ and 
the Acts regulating confirmation of testaments ^ and the remov- 
ing of tenants.^ In the beginning of 1691 the Master of Stair, 
who had accompanied William in his campaign in Flanders, 
was appointed Joint Secretary for Scotland, along with Lord 
Melville, and towards the close of the year that nobleman 
resigned his secretaryship, and the Master remained as sole 
Secretary and virtual Prime Minister for Scotland. The cause 

1 1690, c. 17, Act. Pari. ix. 163. 

* Wa0 man in der Jugend wttnaoht hat man im Alter die FUlle. — Ooefhe, 
WahrheU und Dichtiung, 
3 1690, 0. 20, Act ParL ix. 195. * 1690, c 21, Act Pari. iz. 195. 

« 1690, c. 26, Act Pari. ix. 198. ^ 1690, c. 39, Act Pari. iz. 198. 



MASTER OF STAIR SUPERSEDES MELVILLE. 243 

of this change in the Scotch administration has been much can- 
vassed, and never fully accounted for. Burnet ^ gives as the rea- 
son, the displeasure of William with Melville for sanctioning the 
Act by which the supremacy of the King in matters ecclesias- 
tical was taken away, and that abolishing the rights of patrons, 
both of which, he says, were contrary to the King's instructions. 
But it has been successfully shown ^ that although the King in 
his remarks ' on the Act for settling the Church Government 
expressed his disinclination to assent to these measures, he did 
not in the more explicit and authoritative though earlier In- 
structions ^ forbid Melville from allowing them if necessary ; 
and Melville in his Vindication ^ forcibly pleads that the state 
of parties in Scotland, and of affairs abroad, rendered them 
necessary. Lord Macaulay,^ on the other hand, has ascribed 
Melville's removal from office to his not ''obtaining for the 
Episcopalians in Scotland an indulgence similar to that which 
Dissenters enjoyed in England," in order to give additional 
colour to his portrait of William as the champion of toleration. 
That William exerted the pressure of a strong will in &vour of 
a policy of toleration, cannot be doubted ; but although Mel- 
ville's conduct in this matter may have been made a cause of 

I Hialory of his Own Times, iL 62. 

^ Leven and Melville Papers, Pr^ace^ xzviii. 

^ Even in the letter transmitting the Remarques, William says, " How- 
ever, Wee leave you some latitude, which Wee wish yon may nse with as 
much caution as you can, and in the way wiU tend most to our service." — 
Leven and Melville Papers, p. 436. 

* See the Instructions of 25th Feb. 1690, Leven and Melville Papers, 
p. 414. 

^ See this Vindication, in Leven and Melville Papers^ Prrface, xxiv. 
et seq. 

^ HitUyry, iv. 186. Laing's explanation is that Melville was sacrificed to 
please the Episcopalians {History, ii 219), which is also the view of Ralph 
(History, pp. 212, 332), and of Mr. Leslie Melville, who however says, ** the 
point is one of some interest, but I confess my inability to clear it up. 
Upon the whole, Ralph's solution appears to me the most plausible.*'— 
Leven and MelviUe Papers, Frtfojct, xxviti. 



244 LORD STAIR 

complaint against him, a simpler explanation will perhaps 
suffice for the placing of Sir John Dalrymple instead of 
Melville at the head of the Scotch government The King was 
a shrewd judge of ability, and of what was required by the 
necessities of state. A firm hand and an able head were 
requisite at this juncture ; and the moderate talents combined 
with honesty of purpose which Melville possessed, could not 
compensate for the want of these. 

Although the Club had been discomfited by the discovery 
of Montgomery's intrigue with James ii. in 1690, and the 
prudent concessions of William, the state of affairs in Scotland 
was far fix)m settled in 1691. The Jacobite plots still con- 
tinued; the Highlanders in the northern counties were not 
merely ready to rise — they had never yet owned allegiance to 
William. With the view of strengthening the Government, Stair 
proposed that the militia, which had been embodied by Lau- 
derdale in 1669 to the number of 22,000 men, should be again 
raised.^ The proposal, however, met with much opposition, 
and when the proclamation calling it out was discussed ip the 
Privy Council, the ten members present were equally divided. 
Stair, the Earls of Morton and Forfar, Lords Belhaven and 
Stevenson, were for it; Lords Cardross and Ruthven, the 
Justice-Clerk, Sir John Lauder of Fountainhall, and the Earl 
of Craufurd, against it. A curious letter from the last of these 
noblemen, one of the least trustworthy of the Scotch statesmen 
of that period, who was steadily bent on undermining the influ- 
ence of the Dalrymple family, to Carstairs, gives us a specimen 
of Stair^s capacity for political management. He prevailed on 
four of the dissentients to sign the proclamation, failing only to 
convince Craufurd himself. It was thus he argued : — " My Lord 
Cardross," says he, " I know where your scruple lies. By the 
privilege of the Mint you are exempted fipom attending the 
King^s host, and cannot be forced to it but by consent; 

1 Laing, ii 55. See 1663, c. 26, and 1669, c. 2. 



wm^ii w^i y .>w|i 1.11 A c ^JPW^ w 



SUPPORTS EMBODIMENT OF MILITIA. 245 

and are unwilling to wrong your successors in their rights ; 
besides, your modesty prompts you to decline being Colonel to 
the regiment in Edinburgh, which a provost, if he were once 
chosen, may probably claim. Therefore you may cause mark 
it in the minute, that your signing the proclamation is no 
homologation of your acceptance of that trust, nor yet a paiting 
with your privilege in the Mint, before which my Lord was 
prevailed on to sign the proclamation/' The same wise man 
then addressed my Lord Euthven in these terms : — " By your 
temper your lordship is not willful, nor are you commonly 
wedded to your own opinion ; and as Abraham by his pleading 
for Sodom would have prevailed if there had been ten righteous 
in the city; so it was hoped that for a few ill men in the 
northern shires he would not reject the western, southern, and 
inland counties, who would be such a defence to the nation in 
the case of an invasion; upon which that honest nobleman 
concurred. The discourse was then to the Lord Justice-Clerk. 
That his lordship had been long sick, and it would be under- 
stood peevishness if he were further dissentient, upon which 
his lordship likewise complied. My Lord Fountainhall was 
then told that being no soldier, it was expected he wotdd not 
be tenacious, and that as he was a notable country man, and 
tender of putting the country to any increasing charge, his 
Lordship should be grateful, and whatsoever money was saved 
of the forty days' loan should go into the payment of the cur- 
rent cess. Upon which his lordship was likewise proselyted."* 

Although the proclamation was issued, the militia was 
not at this time called out — the fear of invasion having become 
less imminent ; and Queen Mary, who then presided over the 
Government during the absence of her husband, shortly after 
sent a letter ordering its discharge. 

The tact or poUcy of Stair in this business is an example 
of what his opponents called cunning ; and it must be admitted 

^ Craufurd to Carstairs, IGtli June 1691. — Carstairs State Papers, 144. 



246 LORD STAIR 

that the kind of ability, by which the politician or diplomatist 
takes men as they are, and acts , upon them by the different 
motives to which they are subject, is one apt to degenerate 
into cunning, and which requires its possessor to be on his 
guard against himself, to preserve the honesty of his character. 
Without some share of it, however, a man can scarcely take an 
effective part in public affairs since force has given place to 
persuasion in the government of men. 

Stair had now reached the summit of his prosperity. He 
was tasting with the intense pleasure which only a restored 
exile feels the sweets of home. He saw the triumph of the 
principles for which he had suffered. The friend of the King, 
he himself held the highest judicial, and his eldest son the 
highest political, office in his native country. His other sons 
were provided for in the public service, and had proved 
themselves worthy of the offices they held. His grandson, 
whose education he had watched, was already beginning to 
display the talents which were to add a new lustre to the 
name of Stair. Though he had many enemies, he might 
view their attacks with unconcern, for they were the fruit 
of malevolence and disappointed ambition. He might reason- 
ably look forward to some years of useful activity, and then 
to quit the scene of his labours with a name posterity would 
hold in honour. 

'* But human promise, how short of shine ! 
How topple down the crags of hope we rear 1 " 

His closing years were destined to be clouded by a severe 
private sorrow, — the death of his wife, and by the great crime 
which sulUed the fame of William, disgraced the Master of 
Stair, and has cast a shade over his own character — ^the 
Massacre of Glencoe. 



CHAPTER XII. 



1692-1695. 

D«aih of Lady Stair— Her reputed Witchcraft— Belief in Witchcraft in 17th Century 
—Why attributed to Lady Stair— Her Character— Massacre of Glencoe— Stair's 
connexion with it — ^Attacks upon the Court of Session, and Stair as President- 
How far well founded— Measures in Parliament for Reform of Court of Session 
—Charge against Stair of favouring his sons as advocates not well founded— The 
Peats— Acts of Sederunt of Court of Session during Stair's second Presidency- 
Publication, anonymously, of The Vindication qf the Divine Perfections — 
Summary and Character of this Work— 25th November 1695, Death of Staii^ 
His Personal Appearance— Macaula/s false Character of him— Estimates of Con- 
temporaries — His true Character— Comparison and Contrast between him and 
Lord Bacon — ^His Descendants ; the Master of Stair ; Sir James Dalrymple of 
Borthwick ; Sir Hew Dalrymple of North Berwick ; Dr. Thomas Dalrymple ; 
Sir David Dalrymple of Hailes ; The Field-Marshal and Second Earl Stair ; Lord 
Hailes — ^His character reflected in them— Greater than any of his descendants — 
Chief Founder of Law of Scotland. 



Lady Stair died in 1692. She had been the faithful com- 
panion daring all but fifty years of the mingled prosperity and 
adversity, of the manhood and old age, of her husband. Her 
reputed witchcraft hits been already alluded to in connexion 
with her daughter Janet's ill-fated marriage, but deserves a 
further notice. The belief in witches, common to all classes at 
this period, is to the present age an astounding phenomenon ; 
its disappearance must be reckoned one of the greatest indirect 
benefits science has conferred on humanity. Yet the progress 
of spiritualism shows that other ages are liable to similar 
delusions, though fortunately men can no longer express the 
strength of such beliefs in the blood of others.^ 

^ France has the honour of having first prohibited prosecution for witch- 
craft. This was done by an edict of Louis xiv. — ^Voltaire, SUcle de Louis 
XIV., c. 29. 

The crime was not cast out of our law till 1735 (9 Geo. il c. 5), bat the last 



248 LORD STAIR 

It has been estimated that during the sixteenth and seven- 
teenth centuries 200,000 persons were executed, mostly burnt, 
for witchcraft, in Europe. Germany furnished one-half of the 
victims, and England about 30,000. Of this number Scotland 
contributed a large proportion. "Scotland," writes, in 1647, 
Howell, afterwards historiographer of Charles IL, "swarms 
with them now more than ever, and persons of good quality 
are executed daily." " No fewer than fourteen commissions for 
the trial of witches were granted for different parts of the 
country in one sederunt of the Court of Justiciary on the 7th 
of November 1661, a year which seems to have been unusually 
fertile in this sort of accusation."* 

like slavery, the virus of this superstition was transmitted 
to the young blood of the New World, and the witches of New 
England vied with those of Scotland in celebrity. Divines of 
the Eeformed as well as of the Eoman Church, University 
professors, statesmen, and lawyers, shared the popular belief 
The divines wrged the authority of Scripture, to which the 
lawyers added that of the statute-book.* Not to believe in 
witches was denounced as atheism. 

notice of exeoation for it in England appears to have been in 1712 (see Parr's 
Works, iv. 11, quoted by Buckle, History of dvUisaUon, I 364), and the last 
in Scotland is said to have been in 1697 (Hutchinson's JSsaay on WUcherqft, 
quoted in Cobbetf s State Trials, vi. 654). There is, however, an account of 
the burning of a witch at Dornoch in 1727, in Burt's Letters from the North of 
Scotland, 2d ed., L 233, but the authenticity of this may be doubted. Sir 
W. Scott, in his Letters on Demonohgy and WUchcrcfi, mentions <<that in 
1722 a Sheriff-depute of Sutherland, Captain David Boss of Littledear, took 
upon him, in flagrant violation of the then established rules of jurisdiction, 
to proDounce the last sentence of death for witchcraft which was ever passed 
in Scotland. The victim was an insane old woman belonging to the parish 
of Loth, who had so little idea of her situation as to rejoice at the sight of 
the fire which was destined to consume her. She had a daughter lame both 
of hands and feet, a circumstance attributed to the witch having been used 
to transform her into a pony, and get her shod by the deviL" But this was 
an illegal proceeding, although Scott says no punishment was inflicted on the 
Sheriff for his excess of jurisdiction, and cruel abuse of the law. 

I Hume's Commentaries on the Law respecting Crimes^ I 590. 

' See Sir G. Mackenzie's chapter on Witchcraft in his Cfnminal Law, and 



WITCHCRAFT IN IItb CENTURY, 249 

The second half of the seventeenth century was regarded as 
a time when this Satanic influence was poured forth in more 
than ordinary measure. Its literature teems with hideous 
details of what the devil and witches were supposed to do to 
men, and the cruel tortures and deaths men inflicted on 
supposed witches. 

The Scotch race of witches was reputed to be unusually 
potent "While in other countries they were the devil's slaves, 
here he was their servant Galloway, and the parish in which 
Stair lived, had been the scene of one of the most notorious 
apparitions — the devil of Glenluce. 

The roots of this superstition may be traced back to Pagan 
times. That which is remarkable is, that the human mind was 
now beginning to awaken to the folly of the belief. Its advo- 
cates already argue on the defensive, and the more learned, of 

Lord Hale*8 charge on a trial for witchcraft. ** That there are such creatures 
aa witches I make no doubt at all ; for, first, the Scriptures have affirmed so 
much ; secondly, the wisdom of all nations hath provided laws against such 
persons, which is an argument of their confidence of such a crime." — Cobbett's 
8taU Trials, vi. 699. 

** Monstrous as the thing is, it is on record that in one instance at least, 
the case of Alison Balfour, the torture was not confined to the accused 
herself, but was applied in her presence to her husband, her son, and her 
daughter, a child of seven years old." — Hume's Commeniaries on the Law 
respecting Crimes, i. 59. 

" Our Scotch witch is a far more frightful being than her supernatural 
coadjutor on the south side of the Tweed. She sometimes seems to rise from 
her proper sphere of the witch, who is only the slave, into that of the sorcerer, 
who is master of the demon." — Burton, Criminal Trials in Scotland, i 240, 
quoted by Buckle, History of CtuilisaiUm, m, 37, where many other authori- 
ties are referred to. Of these one of the most remarkable is by a successor 
of Stair as a Professor of Philosophy in Glasgow, Mr. George Sinclair, who 
published in 1685 Saian^s Invisible World Discovered, containing a " Choice 
Collection of Modem Kelations proving evidently, against the atheists of this 
present age, that there are Devils, Spirits, Witches, and Apparitions, from 
authentic records and attestations of witnesses of undoubted veracity." 
" There is much witchery up and down our land," wrote Kobert Baillie in the 
time of the Commonwealth ; '* the English be but too sparing to try it, but 
some they execute." Many other instructive notices on the subject are given 
in Chambers's Domestic Annals of Scotland, 



250 LORD STAIR 

whom Sir George Mackenzie is a sample, feel the necessity of 
compromise. It was openly attacked in 1691 in an elaborate 
work by Balthasar Bekker, entitled The World Bewitched, 
on the principles of the Cartesian philosophy; and even a 
century before, John Wier, a physician of Grave, had boldly 
denounced the demons who had taken possession, not of the 
wizards, but of their judges.^ 

The cause which led to its being attributed to Lady Stair 
was the envious jealousy which the vulgar mind feels with 
regard to the superiority and prosperity of its neighbours, "i/ 
a tvoman," observes Baron Hume, ** throve in the world more 
than her neighbours saw cause for, or perhaps wished, or if she 
kept her health in a sickly season, or were not to be found at 
any time she was sought for, it behoved her, by the rules of this 
code, to be in company with the devil, and be one of his 
servants." ^ The rise of the Dalrymple family had been sudden 
and almost unprecedented. No Scotchman had, before Stair, 
risen so high by merit in a purely civil walk. Unwilling to 
admit its true cause, lus adversaries sought for a supernatural 
one. Lady Stair had not only shared in it, but by the fortune 
she brought her husband might be deemed to have materially 
contributed to its foundation; nor is it improbable that, as 
many wives, she had spurred the ambition of her hus- 
band. 

In the satires of the day she was described as the Witch of 
Endor. By the common people, with the rude familiarity for 
which in Scotland this class has sometimes been conspicuous, 
she was known as Aunty, and Dame Maggy or Maggie Eoss. 
She had made, it was said, a paction with the Evil One, who 
enabled her to assume various shapes at wilL Once she 
appeared in the form of a cat, which crossed the Duke of 
Hamilton's cushion as he sat in St. Giles's Cathedral : 

^ Motley, UnUed Netherlands, iv. 528. 

^ Hume's Commentaries on the Law respecting Crmes, L 590. 



SATIRES ON LADY STAIR 251 

'' Johnstoun, rejoice with your Mend Onnistoun 
And you. Sir William, and Duke Hamiltoun, 
That the cat that crost the cushioun in the Church 
Is dead, and left her kitelings in the lurch." ^ 

On another occasion she promised the assistance of the 
devil to Sir Patrick Murray,* member of Parliament for Stran- 
raer, if he voted as she wished, and redeemed her promise by 
directing his ball into the hole at golf. The misfortunes, as 
well as the fortune of her family, were ascribed to her influence. 
One daughter had ill-hap in marriage ; another was a witch, 
like herself; her grandson had killed his brother. 

*^ Its not Staires baimes alone Nick doth infest. 
His children's children likewise are possest." 

Her own death was celebrated in several coarse epitaphs, 
prophesying the downfall of the Dalrymple family, but this 
prophecy has not been fulfilled.'* 

The ability of Lady Stair was shown in a favourite 
sphere of a woman's activity, the marriage of her daughters, 

^ Upon the lang wished for and tymely death of the Right Honourable 
the Lady Stair. — Maidment, Scotch Peuiquils, p. 192. 

" So pouse in majestie, from cloath of State 
St. Geills saw thrown by Huffie, Duke of late."— /6t(2. p. 187. 

^ Sir Patrick Murray was the representative of Stranraer in Parliament, 
put in there by Lady Stair, to whom she promised Old Nick's assistance if 
he voted her way in Parliament, and accordingly she ordered his ball while 
at Golfe. — R. M. Robert Mylne's note to Pasquil on the Stair family; 
Maidment, 184. This is also referred to, p. 181 : — 

*' He (i.e. Stair) jure posiUminU did transnb 
Himself to ball, the Parliament to dub, 
Which will him holl when right teased at ane blow. 
Or else Sir Patrick will be the shinnie goe." 

3 There is a very singular reference to the witchcraft of the Dalrymple 
family in Pepys*s Corre8p<nidence. Dr. Hickes writes to Pepys, June 19, 
1700, "As for this subject, I had a very tragical but authentic story told 
me by the Duke of Lauderdale, which happened in the family of Sir John 
(James) Dalrymple, Lord of Stair, and then Lord President, as they call the 
Lord Chief Justice in Scotland. His Grace had no sooner told it me, but 
my Lord President coming into the room, he desired my lord to tell it me 
himself, which, altering his countenance, he did with a very melancholick 
air, but it is so long since, 1 dare not trust my memory with relating the 



252 LORD STAIR 

success in which is apt to turn against her those who have 
tried and failed. Besides Lady Dunbar, her daughter Eliza- 
beth was wife of Lord Cathcart ; Sarah, of Lord Crichton, after- 
wards Earl of Dumfries; Isobel, of Sir David Cunningham 
of Milncraig. Her wit must have been ready, if we may judge 
from a single specimen which has survived. Meeting Claver- 
house, probably when executing his commission in Galloway, 
he began inveighing against John Knox. " There is not, after 
all," she said, " so much difference between you and him, only 
he gained his point by * clavers,' you gain yours by ' knocks.' "* 
To the opinions of the Eefonner she appears to have adhered 
with even more tenacity than Stair himself Her withdrawal 
from the ministrations of the Episcopal curate at the parish 
church, we have seen was one of the causes of Stair's exile. 
This, no doubt, contributed to the hatred with which she was 
pursued when living, and in her grav^ by the Jacobite satirists. 
Yet her character, even as drawn by these implacable enemies, 
rises before us out of the mist of the past, as that of a woman 
of strong purpose and much spirit, well able to bear either good 
or evil fortune. 

Although the tragic page of Scotch history on which is 
inscribed the name of Glencoe belongs more to the life of his son 
than to that of Stair, and is too well known to bear repetition of 
its details, it cannot here be passed over. After the Eevolution, 
not only was the union with England, though considered 
pressing, still delayed, but Scotland itself was a divided nation. 
The Celtic race of the North and West Highlands were " aliens 

particulars of it, though it was a memorable story ; but if my Lord Beay 
would be pleased to make enquiries of the present heir of the family, he 
would find it a story of great authority, and worthy of being written by his 
excellent pen." On August 2d, Pepys writes to Dr. Hickes, " I shall very 
soon repeat my demands to my Lord Reay touching the Lord JE^resident 
Stair's story," but the further letters of the correspondence are unluckily 
not preserved. 

* MvLmy*B LUerarif History of GaUoway^ 155. 



CONDITION OF THE HIGHLANDS. 253 

in blood, language, and religion *' from their fellow-countrymen 
of the East, West, and South Lowlands. In many homes of 
the west the recollection of the Highland Host was still fresh. 
The simple custom of obedience to the patriarchal chief was 
better understood in the Highlands than the rules of the 
feudal and the civil, or even of the moral law. Eobbery 
at the command of the chief was no crime, killing no murder, 
lying in his service no vice. Disobedience to the chief was the 
gravest guilt a clansman could commit. How this was to be 
remedied was a problem for a statesman of those days as 
dij£cult as the settlement of Ireland has proved to those of 
our own. Then, as now, there were those who advocated a 
decided and severe policy as true wisdom. There is much 
ground for thinking that in this they judged rightly ; the law- 
lessness of the Scotch, like that of the Irish Celts, was not 
likely to be. curbed by half measures. But the breach of faith 
and wanton cruelty which accompanied the execution of this 
policy were grievous errors as well as heinous crimes.^ The 
memory of Glencoe's bloody day impeded the settlement of 
Scotland throughout all William's reign, and was not forgotten 
in 1715 and 1745. 

The plan devised by the Earl of Breadalbane, and assented 
to by the Master of Stair, was that the former should be in- 
trusted with £20,000 to gain over the Highland chiefs, while a 
Proclamation ^ was issued that all who did not take the Oath of 
Allegiance before 1st January 1692 were to be held guilty of 
treason, and letters of fire and sword put in execution against 

^ ** A new scheme was suggested by Lord Breadalbane, adopted by the 
Secretary (the Master of Stair), and assented to by the King, for catting 
off aU the Highland rebels who should not take the oaths to the new Qovem- 
ment within the time prescribed by law. The mode of the execution was 
intended to be by what was called in Scotland letters of fire and sword, an 
inhuman but a legal weapon in that country against attainted rebels."- — Sir 
John Dairy mple*s Memoirs^ i. 119. 

' 27th August 1691. Papers illustrative of Condition of the Highlands* 
— ^Maitland Club, p. 35. 



254 LORD STAIR 

them. In furtherance of this plan a truce or cessation of 
hostilities had been arranged by Breadalbane with the chiefs, 
and Major-General Buchan and Sir Greorge Barclay on behalf 
of James vn., and signed At Achalader on 30th June 1691, but 
it was only to endure till 1st of October.^ Toward the end of 
December 1691 Macdonald of Glencoe came to Colonel Hill, 
Governor of Fortwilliam, at Inverlochy^ and offered to take the 
oath, but was referred by him to Sir John Campbell of Ardkin- 
glas, Sheriff of Argyleshire at Inverary, as the proper ofl&cer to 
receive it. Hill gave him a letter to Ardkinglas to take him in 
" as a lost sheep." Glencoe repaired to Inverary, and his oath 
was taken by Ardkinglas, but, through several imtoward circum- 
stances, not tiU the sixth day after the time prescribed in the 
Proclamation. The deposition of Glencoe was sent by Ardkin- 
glas, along with Colonel HUl's letter, to the Privy CouncQ in 
Edinbui^h, but the Clerks of the Council refused to accept it, 
" because done after the day appointed by the proclamation." * 
The papers seem afterwards to have been received, but that which 
contained Glencoe's oath was deleted, and none of them are now 
to be found amongst the Acts or Warrants of the Privy CoundL' 
The Commissioners appointed by William in 1695 to inquire 
into the massacre, reported on this deletion that Colin Campbell, 
Sheriff-Clerk of Argyle, and Mr. John CampbeU, Writer to the 
Signet, " went, as they depone, to Lord Aberuchill, then a privy 
councillor, and desired him to take the advice of privy coun- 
cillors about it, and accordingly they afiirm tliat AberuchUl said 
he had spoke to several councillors, and partly Q particularly) to 
the Lord Stair, and that it was their opinion that the foresaid 
certificate could not be received without a warrant from the King, 
and that it would neither be safe to Ardkinglas nor profitable 

* See Papers iUustrative of Condition of Highlanda. — Maitland Clnb. 

' Beport of Glencoe Commission, 20th June 1695. 

' This has been ascertained by an examination of these, in which I have 
been aided, as on other occasions, by the kindness of Mr. Dickson, the His- 
torical Curator, Register House, Edinburgh. 



OLENCOE'S OATH. 256 

to Glencoe to give in the certificate to the Clerk of the Council. 
And this the Lord AleruchiU eonfirmi by his deposition, hit doth 
not name therein the Lord Stair, And Colin Campbell, the 
Sherifif-Clerk, does farther depone that with the knowledge of 
Lord AberachUl, Mr. John Campbell, and Mr. David MoncriefiT, 
Clerk to the Council, he did by himself or his servant, score 
or delete the foresaid certificate, as it now stands scored, as 
to Glencoe's taking the oath of allegiance, and that he gave it 
in so scored and obliterate to the said Mr. David Moncriefi^, 
Clerk to the Council, who took it in as it is now produced. 
But it doth not appear by all these depositions that the 
matter was brought to the Council board that the Council's 
pleasure might be known upon it, though it seems to have 
been intended by Ardkinglass, who both wrote himself and 
sent Colonel Hill's letter to make Glencoe aware, and desired 
expressly to know the Council's pleasure/' 

Were we to weigh these depositions by the rules of legal 
evidence, they would be insufficient to prove that Stair took any 
part in this business. The hearsay of the two Campbells 
would be held inadmissible, and even, if admitted, as it is not 
corroborated by the better evidence of Lord Aberuchill himself, 
it could not be relied on. But the Court of History is not 
bound by such rules ; and although it is impossible to pro- 
nounce a positive opinion upon the point, it appears not impro- 
bable that Stair was one of the Privy Councillors who advised 
that Glencoe's oath should not be received, for he was one of 
the Committee of the Privy Cotmcil, by whom matters relating 
to the Proclamation and Indemnity were to be considered.^ The 
fact that it had been tendered, and it would appear the . whole 
papers on the subject, were brought to the knowledge of the 
Court at London,^ and whatever doubt may hang over Staii^s 
conduct, there can be none as to that of his son. The Secretary 
had yielded with reluctance to the scheme for buying the 

^ MS. Privy ComicU Reoord, Jannary 1692. ' Beport of Commiflsion. 



256 LORD STAIR 

chiefs. On 2d December he had written to Breadalbane : — 
"God knows whether the £12,000 sterling had been better 
employed to settle the Highlands or to ravage them, but since 
we will make them desperate, I think we should root them out 
before they can get that help they depend on." ^ And on the 
following day: — "By the next I expect to hear either that 
these people are come to your hand, or else your scheme for 
mauling them, for it will not delay. ... I am not changed as to 
the expediency of doing things by the easiest means and at 
leisure, but the madness of these people and their ungrateful- 
ness to you makes me plainly see there is no reckoning upon 
them ; but delenda est Carthago. Yet who have accepted and 
do take the oaths will be safe, but deserve no kindness." ^ 

To Sir Thomas Livingstone, the Commander of the Forces, 
he wrote on 7th January, " I assure you your power shall be 
full enough, and I hope the soldiers will not trouble the 
Government with prisoners ; " * on the 9th, when he seems 
already to have heard a rumour that Glencoe had come in: 
" For my part I could have wished that the Macdonalds had not 
divided, and I am sorry that Keppoch €md Maclan of Glencoe 
are safe;"* and on the 11th, "I have no great kindness to 
Keppoch nor to Glencoe, and its weU that people are in 

^ Sir John Balrymple's Memovrs, iL 265. In the same letter he says : — 
" I think the Clan DoneU must be rooted out, and Lochiel." See also his 
earlier letters of Jane 25 and August 24, 1691. — Ibid, ii. 260. 

' Sir John Dalrymple^s Memoirs, IL 216. See also his letters to Bread- 
albane, of 27th October and 3d November 1691, in Appendix to Barton's 
HUtory qf Scotland since HevoluHony i 525. 

^ In a part of this letter, not quoted by the Commission, the Master men- 
tions "that they had an account that Glencoe had taken the oaths at 
Inverary.*' — OaUienus Bedtvitms, p. 114. After the massacre the Master wrote 
to Hill, 5th March 1692, "I have the account both from yoa and your 
Lieutenant-ColoneU of the affair of Glenco. There is much talk of it here 
that they are murdered in their beds after they had taken the allegiance ; 
for the last, I know nothing of it." He adds, " AU I regrete is that any of 
the sect got away." — Papers illustrative of Condition of the Highlands, p. 75. 

^ Keport of Commission. 



LETTERS OF MASTER OF STAIR, 267 

mercy. . . . My Lord Argyle tells me that Glencoe hath not 
taken the oath, at which I rejoica It is a great work of 
charity to be jexact in rooting out that damnable sect, the worst 
of the Highlands."^ Oniihe 11th and 16th the King's instruc-^ 
tions were issued to Livingstone, in language which there is 
little doubt is that of the Master of Stair :^ — "If Mac Ian 
of Glencoe and that tribe can be well separated from the 
rest, it will be proper vindication of the public justice to 
extirpate that set of thieves ; " but these instructions were 

^ Report of Commiaaion. 

3 The first instmctions were on 1 Ith January. The whole of the addi- 
tional inatraction of 16th January ia aa foUowa : — " William R. 1. The 
copy of that paper given by Macdonald of Auchtera to you hath been 
ahown to ua. We did formerly grant paaaea to Buchan and Cameron, and we 
do authoriae and allow you to grant paaaea to them, and for ten aenranta to 
each of them to come freely and aafe to Leith, and from that to be trana- 
ported to the Netherlanda before the day of March next, to go from 
thence where they pleaae without any atop or trouble. 

" 2. We do aUow you to receive the aubmiaaiona of Glengarry and thoae 
with him, upon their taking the oath of allegiance, and delivering up the 
houae of Invergarry ; to be aafe aa to their livea, but aa to their eatatea they 
muat depend upon our mercy. 

** 3. In caae you find that the houae of Invergarry cannot probably be taken 
in thia aeaaon of the year with the artillery and other proviaiona you can 
bring there, in that caae we leave it to your diacretion to give Glengarry the 
aaaurance of entire indemnity for life and fortune upon delivering the houae 
and arma, and taking the oath of allegiance. In thia you are allowed to act 
aa you find the circumatancea of the afiiair do require ; but it were much 
better that thoae who have not taken the benefit of an indemnity in the 
terma and within the diet propoaed by our proclamation they ahould be 
obliged to render upon mercy. And the taking of the oath of allegiance ia 
indiapenaable, ^others having already done it. 

*' 4. If M'lan of Glencoe and that trybe can be well aeparated from the 
reat it will be proper vindication of the public jnatice to extirpate that aet 
of thievea. The double of theae inatructiona ia only communicated to 
Colonel Hill. W. Rex." — Inatructiona from the King to Sir Thomaa Living- 
atone, Papera iUuatrative of the Condition of the Highlanda, p. 65 ; and the 
Inatructiona to Colonel Hill, CuUoden Papera, p. 19. Of the aame date the 
Maater of Stair wrote to livingatone : — '* I aend you the King'a Inatructiona, 
auper and aubeoribed by himaelf . I am confident you will aee there are fuU 
powera given you in very plain terma, and yet the methods left very much 
to your own diacretion." — Papera iUuatrative of the Condition of the 
Highlanda, p. 61. 

R 



258 LORD STAIR. 

subscribed and superscribed by William himself. Bumet 
pleads on his behalf that he did not read the order which he 
twice signed. Macaulay^ urges that 'Hhese words naturally 
bear a sense perfectly innocent, and would, but for the terrible 
event which followed, have been universally understood in that 
sense." 

It is impossible to accept either of these apologies. The 
King, who does not read an order authorizing death, is scarcely 
less culpable than one who issues knowingly such an order 
unjustly. But the fact is that William had been constantly 
consulted on the measures for reducing the Highlands. These 
were by no means of the small importance sometimes repre- 
sented, for on them depended the peace of the kingdom and the 
security of his reign« The best interpretation of the words of 
the order is that which the officer to whom they were addressed 
put upon them. What followed in February* was the exter- 
mination of the men of Glencoe, so far as the fierce soldiers to 
whom its execution was intrusted were able to effect it. From 
the 1st to 13th February Campbell of Glenlyon and his troop 
of 120 soldiers, who were despatched on this service by Colonel 
Hill, lived as guests in the houses of Macdonald and his clan. 
On the 13th they murdered their hosts under circumstances of 
singular atrocity.^ By two parties the massacre was naturally 

1 Hist^yry, iv. 206. « 13th February 1692. 

' More telling than any pictureeque account such as Macaulay has given 
is the plain narrative of the Commission of 1695 : — ''The slaughter of the 
Glencoe men was in this manner, viz., John and Alexander Macdonald, sons 
to the deceased Glenco, depone that Glengary's house being reduced, the 
forces were caUed back to the south, and Glenlyon, a captain of the Earl of 
Aigyle's regiment, with Lieutenant Lindsay and Ensign Lindsay, and six 
score soldiers returned to Glenco about the Ist of February 1692, where, at 
their entry, the elder brother John met them with about twenty men, and 
demanded the reason of their coming ; and Lieutenant Lindsay showed him 
hii order for quartering them under Colonel Hill's hand, and gave assurance 
that they were only come to quarter, whereupon they were billeted in the 
country, and had kind entertainment, liviug familiarly with the people until 
the 13th of February. And Alexander further depones that Glenlyon, beiug 
hii wife's uncle, came almost every day and took his morning drink at his 
house, and that the very night before the slaughter Glenlyon did play at 



MASSACRE OF QLENCOE. 259 

seized upon as a good opportunity to attack their opponents. 
The Jacobites used it as a means to discredit the government 
of William ; the adversaries of the Dalrymples as a means to 
procure the removal of Stair and his son from their offices. It 
was speedily brought before the European public by the Paris 
Oaaette of 7th April, and in the same month a letter was pub- 
lished from a gentleman in Scotland to his Mend in London 

cards in his own quarters with both brothers. And John depones that old 
Glenco, his father, had invited Glenlyon, Lieutenant Lindsay, and Ensign 
Lindsay to dine with him upon the very day the shiughter happened. But 
on the 13th of February, being Saturday, about four or five in the morning. 
Lieutenant Lindsay, with a party of the foresaid soldiers, came to old 
Olenco's house, where, having called in a friendly manner, and got in, they 
shot the father dead with several shots as he was rising out of his bed ; and 
the mother, having got up and put on her clothes, the soldiers stripped her 
naked and drew the rings off her fingers with their teeth, as likewise they 
kiUed one man more and wounded another grievously at the same place ; 
and this relation they say they had from their mother, and is confirmed by 
the deposition of Archibald Macdonald, indweller in Glenco, who further 
depones. That Glenco was shot behind his back with two shots, one through 
the head and another through the body. . . . And the said John, Alexander, 
and Archibald Macdonald do all depone that the same morning there was 
one Sergeant Barber with a party at Auchnaion, and that Auchintriaten 
being there in his brother's house with eight more sitting about the fire, the 
soldiers discharged upon them about eighteen shots, which kiUed Auchin- 
triaten and four more, but the other four, whereof some were wounded, faU- 
ing down as dead. Sergeant Barber laid hold of Auchintriaten's brother, one 
of the four, and asked him if he were alive ? He answered that he was, and 
that he desired to die without rather than within. Barber said that for his 
meat that he had eaten he would do him the favour to kiU him without ; 
but when the man was brought out and soldiers brought up to shoot him, he, 
having his plaid loose, flung it over their faces, and so escaped ; and the 
other three broke through the back of the house and escaped And at 
Inveriggen, where Glenlyon was quartered, the soldiers took other nine men, 
and did bind them hand and foot, and kiUed them one by one with shot ; 
and when Glenlyon inclined to save a young man of about twenty years of 
age, one Captain Drummond came up and asked how he came to be saved 
in respect of the orders that were given, and shot him dead And another 
young boy about thirteen years ran to Glenlyon to be saved ; he was likewise 
shot dead. And in the same town there was a woman, and a boy about four 
or five years of age killed And at Auchnaion there was also a child missed, 
and nothing found of him but the hand. There were likewise several killed 
at other places, whereof one was an old man about eighty years of age." — 
Report of Commission. 



260 LORD STAIR 

describing it in detail In 1695 it was again revived in a 
notorious pamphlet^ in which Gallienus, the son of Valerian, 
a weak and wicked Boman Emperor, was held up as the 
prototype of William.^ 

The Scotch Parliament of 1693 had been with difficulty 
prevented from accusing Stadr and the Master by the Secretary 
Johnston,^ who, while he was obliged to follow the orders he 
received on the subject, appears to have secretly encouraged 
the opposition. He had already begun a plot to supplant the 
Master, and become sole secretary himself. No Parliament sat 
in 1694, but as soon as it reassembled in 1695, under the 
Marquis of Tweeddale as .Commissioner, one of the first demands 
made by the newly appointed Committee* for security of the 

^ OcUlienua BedivtvM — the motto affixed is the letter of GaUieniu to one of 
his ministon in Dlyricnm : — ** Non mihi satisfacieB si tantum armatos occideiis 
quoa et fors belli intorimere potoiaset. Puniendus eat omnia sexus Tiiilis si 
et senes atque impuberes sine reprehensione nostrft oocidi possent. Occidendos 
est qnicumque male voluit. Ocoidendns est quicumque male dicit contra me, 
contraValerianum filium, contra tot principnm patrem et fratrem. Ingenuus 
f actus est imperator. Laoera occide concide : animum menm intelHgere potes 
mea mento irascere ^t haec manu mea acriptL" — Quoted by Mr. Paget, New 
JExament p. 135. 

^ Secretary Johnston to Carstaires, 18th April 1693. This letter, how- 
eyer, appears to refer to the causes of complaint. — Carstaires, State Papers^ 
153, 4th May 1693; Sfid, 159. 

> In a Memorial of some Affairs of State, 1695, the origin of this 
Committee is thus explained : — *^ The first stop of bussines being the choyse 
of a Committee, it was consorted with the managers (i.e. the managers 
of the Opposition in Parliament) that there should be a Conmiittee for the 
Security of the Kingdome, consisting of nyne of every estete, twenty-seven 
in all, and the persons were also consorted soe that above two to one should 
be of the hotest sort, who might carry everything to ther pleasure in that 
Committee, and thes oonserted lists carryed with some alteration in the 
nobility, and without any alteration at all in the Commissioners for shyres 
and buighs. And all matters of any moment were designed, and actiially 
have been remitted to that Committee, to the great retardment of the pub- 
lick inter^, and the raising and fomenting of heate and divisions. At the 
first meeting of this Committee the Duke of Queensberry, the Earle of 
Aigyle, Master Lothian and Leven did attend, but it was consorted that the 
Earle of Crawf urd should be chosen preses of that great Committee for pre" 
paring all the public business of the nation, a man who wes not so much as 
upon his Mattie's Privy Councell, and who was known to be on the top of 






COMMISSION OF INQUIRY, 261 

kingdom was, that an inquiry should be made in the matter of 
Glencoe. A Parliamentary inquiry was only averted by the 
nomination of a Eoyal Commission.^ The Commission con- 
sisted of Tweeddale, the Earl of Annandale, Lord John Murray, 
afterwards Duke of Athole, Sir James Stewart Lord Advocate, 
Adam Cockbum Lord Justice-Clerk, Archibald Hope of 
Eankeillor, Sir William Hamilton Lord Whitelaw, Judges of 
the Court of Session, James Ogilvy King's Solicitor, and Adam 
Drummond of Megginch. One at least of the Commissioners, 
Hamilton, was the bitter enemy of the Dalrymples, and the 
efforts of the Commission were directed to whitewash the 
King, and incriminate the Master of Stair.^ Although this 
renders the conclusions of the Commission doubtful, in so far 
as they distribute the blame amongst the persons concerned, 
the careful scrutiny of the whole evidence by historians in 
after times, and by keen partisans of all sides, has established 
the accuracy of their report as regards matter of fact. Motions 
were repeatedly made that their report should be laid before 
Parliament, and at last, though with evident reluctance, this 
was done on 24th June 1695. 

The result at which they arrived was, " 1. That it was a 
great wrong that Glenco's case, and diligence as to his taking 
the oath of allegiance with Ardkinglas's certificate, and the 
letters of Ardkinglas and Colonel Hill were not presented to 

all violeot designs. . . . And since that time Sir William Hamilton of 
Whytlaw, a very forward person, a Commissioner for a burgh, hes been 
almost constantly chosen preses." — Papers iUustrative of the Condition of 
the Highlands, p. 153. 

1 Commissio pro Inqnirendo de Caede de Glencoe, 29th April 1695. — 
Papers illustrative of Condition of Highlands, p. 97. 

^ ** This Commission was granted by his Majesty of designe to satisfie the 
world that the warrand given by the King was legal and just, and that the 
error lay in the untimely execution of it. But least the King might have had 
a truer view of the bnssines, thes who obtained the Commission keept it 
private from Secretary Stair, and it was still keeped private till that very 
-day that the king's going beyond sea was knowen at Edinburgh, then it wes 
exposed." — Memorial of some Affairs of State, Papers illustrative of Condition 
of Highlands, p. 154. 



262 LORD STAIR. 

the Privy Concell, and that those who advised the not present- 
ing thereof were in the wrong, and seem to have had a malitious 
design against Glencoe ; and that it was a further wrong that 
the certificate as to Glencoes taking the oath of allegiance was 
delete and obliterate after it came to Edinburgh. 2. That it 
appears to have been known at London, and particularly to 
the Master of Stdr, in the month of January 1692, that 
Glenco had taken the oath of allegiance, though after the day 
prefixed. 3. That there was nothing in the Kings instructions 
to warrant the committing of the foresaid slaughter, even as to 
the thing itself, and far less as to the manner of it. 4. That 
Secretary Stairs letters, especially that of the llth and that of 
the 16th January, of the same date with the Kings additional 
instructions, and of the 30th of the same month, were no 
ways warranted by, but quite exceeded, the Kings personal 
instructions." 

On the same day the Parliament voted imanimously that 
the execution of the Glencoe men was without warrant in the 
King's instructions, and, whether unanimously or not is not 
clear, that that execution was a murder. By subsequent votes 
it was carried that the Master of Stair's letters exceeded the 
icing's instructions ;^ that Sir Thomas Livingstone, the Com- 
mander-in-chief, had reason to give the orders he did ;* that 
Lieutenant-Colonel Hamilton was not clear of the slaughter ;^ 
that Major Duncanson, who was in Flanders, should be ordered 
home to be prosecuted as the King should think fit; that 
Glenlyon, Captain Drummond, Lieutenant Lindsay, Ensign 
Lundie, and Serjeant Barber, were actors in the slaughter of the 
Glencoe men, and that his Majesty should be addressed to send 
them home to be prosecuted. In the address, which was after- 
wards* laid before Parliament by the Committee, the Master 

^ Minutes, 26th June 1694. ^ Ihid. 28th June. 3 [y^ 3th July. 
^ 10th July 1695 ; Papers illustrative of the Condition of the Highlands, 
p. 145. 



ESTIMATE OF GUILT. 263 

of Stair was severely censured, but it was left to the King to 
deal with him as he pleased.^ 

Whatever opinion we may fonn of William's original com- 
plicity, there can be none that he condoned the guilt of his 
subordinates. Although the Master of Stair was deprived of 
office, he soon afterwards received a remission* from William, 
who, instead of prosecuting the officers as the Parliament re- 
commended, promoted them.* An independent study of the 
case will probably lead the unbiassed student to the conclu- 
sions at which Mr. Paget comes in his careful monograph on 
this subject : — " We cannot doubt that William's signature was 
affixed to the order with fuU knowledge of the facts, and that' 
his intention was to strike terror into the Highlanders by the 
extirpation of a clan too weak to offer any effectual resistance, 
but important enough to serve as a formidable example. Next 
come Breadalbane and the Master of Stair, between whom the 
scales balance so nicely that it is hard to say to which the 
larger share of execration is due. Livingstone, Hamilton, 
Duncanson, Drummond, Glenlyon, and his subalterns, must 
share amongst themselves the responsibility for the peculiar cir- 
cumstances of treachery and breach of hospitality attendant 
upon the execution. For this we think neither William, Bread- 
albane, nor the Master of Stair can justly be held answerable." 
As to what concerns Stair himself, the non-presentment to the 

^ A defence of the Master, styled Jn/omuUion /or the Master of Stair, 
written by his brother Hew, having been circulated amongst the members of 
Parliament) was voted false and calumnious, and ordered to be burnt. The 
whole proceedings afford a favourable specimen of the capacity of the Scotch 
Parliament for the conduct of business. — Papers illustrative of the Condition 
of the Highlands, p. 120. The substance of this defence is (1.) that the Master 
did not authorize the manner of the execution of the order ; (2.) thst he did 
not know Olencoe had taken the oath. 

^ See Scroll of Discharge to John, Viscount of Stair. Papers illustrative 
of the Condition of the Highlands, p. 149. 

' " Colonel Hill becomes Sir John ; Glenlyon when he reappears on the 
stage of history is a Colonel ; Livingstone becomes Lord Teviot" — Paget's 
£!xamen, p. 145. 



264 LORD STAIR. 

Privy Council of Glencoe's oath, this was certainly a remote 
link in the chain of causes which led to the massacre, but it 
was a link, and probably the safest language which can be used 
is that Parliament employed with regard to Hamilton, that he 
is not clear from the slaughter of the Glencoe men. It is fair, 
however, to observe that the Commission, no doubt on account 
of the insufficiency of the evidence, did not mention Stair by 
name as a party to the act of not presenting the papers to the 
Privy Council. 

Glencoe, though the darkest, was not the only cloud which 
obscured the horizon when the sun of Stair began to set. The 
Court over which he presided was the subject of constant and 
vehement attacks. A disappointed suitor presented a charge 
against him to Parliament, the majority in which readily granted 
an inquiry ; but when that inquiry was made by the Committee 
for the Security of the Kingdom, which included several of his 
personal enemies, nothing against him was proved.^ The 

^ ** The first publick attaqne in Parliament was made upon the Viscount 
of Stair by a vile and evil person of noe credit or reputation in the world, 
who was prompted to offer a biU to the Parliament complaining of injustice 
done to him by the said Viscount of Stair, President of the Session; and 
this project was keept private tiU it was ready for execution. Upon a Satur- 
day's night ther was a great meeting in a tavern of towards fourty members, 
when harangue was made that they should not divyde in their votes for the 
good of the natione. The Secretary Johnston was ther, but went away 
before the project was opened. The President of the Parliament and aU the 
active members of that party in the Committee for Security stayed tiU the 
last, who held furth what a great injustice had been done by the President, 
and how much it tended to the union of the nation to punish the lyke ; and 
it was concerted that a precognition should be taken before the Committee 
for Security. The bussines was brought in by surprize upon Monday morn- 
ing, and a son of the Viscount of Stair, being a Member of the Parliament, 
having complained of the methods used in that matter, endeavoured to clear 
the business and assert his father's innocence. He was twice repremanded 
from the throne ; and the assertion of the biU being bold and weill supported, 
it was with little difficulty agreed to be inquired into, but many thoght it 
hard that the inquiry should be remitted to the Committee for the Security 
of the Kingdome ; but that being conserted and put to the vote whether 
elect a new committee or remitt, caryed remitt only by three votes, which 
may satisfie the world how equaUy the Parliament is poised, even as to 
number, when the influence of the persons chiefly trusted, and a previous 



CHARGES AGAINST COURT OF SESSION. 265 

Bench, his enemies said, was filled with his creatures, the 
taint of corruption still clung to it, and a form of judicial vice, 
not unknown in other times, in other forms, the favour shown 
by judges to their relations and friends, was specially charged 
against its members, including Stedr himself. Stair undoubtedly 
had a large share in the nomination of the Bench at the Bevo- 
lution, but the new judges seem to have been the best that 
could have been chosen, and from the reports of one of them — 
Lord Fountainhall, the ablest lawyer then in Scotland — we see 
that they were far from subservient to Stair. A series of Acts, 
passed on the recommendation of the Committee for the Secmity 
of the Kingdom, however, show that there still existed abuses 
in the administration of justice requiring remedy, and which 
appear to justify Mr. Laing's opinion that ** it is not sufficient 
to ascribe to political animosities the outcry of all parties 
against Stair as President" ^ Judicial purity is a plant of slow 
growth in a soil which has once been corrupt. Although 
Stair was in advance of his predecessors in this respect, the 
necessity for parliamentary reform in matters which might 
have been set right by the native vigour of the Court, proves 
that he was not free from reproach. 

Thus the despatch of business, a subject peculiarly appro- 
priate for regulation by the Court, had to be promoted by an 
Act of Parliament which required concluded causes, where the 
judge reporter considered the depositions to be clear on either 
side, to be summarily decided.^ 

consent, did cary so narroiwly tip a snrpryse of the other syde. It is not 
fitt to reflect upon the procedure of that Committee, but this is certain, that 
they were very vigorous in the prosecution and inquiry at first, %mtill the 
wUneaaes adduced to load the President did fully esoculpat and clear him to 
the view of the world. But since the procedure has been very heavy, and 
•when they could not load the President in his old age and absence, his 
freinds could not move them to advance one step towards his exoneration 
and the punishment of his lybeller ; but there are informations printed and 
published that doe sufficiently vindicate him in the eyes of the world." — 
Memoriall on State of Affairs, 1695 ; Papers illustrative of Condition of the 
Highlands, p. 157. 

1 Laing, u. 126. « 1693, c. 17, Act. Pari. ix. 282. 



266 LORD STAIR 

A practice which had given rise to much dissatisfaction, of 
modifying, or even altering, the terms of a judgment, after it 
had been delivered, was checked by the provision that all 
interlocutors should be signed immediately after the vote was 
taken, in the presence of the Judges, by the President.* 

A regular weekly rotation of the judges in the Outer House 
was enforced, and it was declared that if a judge left his seat 
in the Outer House during his week, and came into the Inner 
House, the parties should be entitled to decline him if they 
suspected him of partiality.^ This was directed against packing 
the Bench to secure a judgment in a particular case, flagrant 
instances of which had been known. It was also provided 
that advocates should sign the Minutes of Debate, which at 
that time were reduced to writing by the clerks, a custom which 
must have given those officers useful occupation, and may have 
had the effect of preventing to some extent verbose or irrele- 
vant arguments by coimsel. An important change in the pro- 
cedure of the Courts of Session and Justiciary was effected by 
two Statutes, which enjoined that the judges should hear and 
decide causes with open doors, except in certain criminal cases, 
where the former custom of excluding the public during the 
proof was to be continued.' This change marks a point of depart- 
ure from the Continental model of judicature which Scotland, as 
the great part of Europe, had adopted from the ecclesiastical 
tribunals, where the sittings were private. It was probably due 
to the example of the English Courts, and to the growing feeling 
that publicity was a safeguard of justice as well as of liberty. 

1 1693, c. 18, Act. Pari. iz. 283. It is fiom this Act that the cnstom of 
the President adding to his signature the letters I. P. D. (m prasaentui dormn^ 
orum), took its rise. ^ 1693, o. 19, Act. Pari. ix. 283. 

' By the A. S. of 27th May 1532, which first regulated the prooednre of 
the Court, it was provided that all " Advocates and Procuratoures saU entre 
in the CounsaU houss at the calling of all Summondis and actes, and remane 
qnhill the parties have argonit and dispute thair matters at the bar ; and 
than to remove quhen the parties are removit, and than to entre againe at 
the gevin and pronunciatioune of interlocutors when the parties enteris." 
The Statutes altering this are 1693, c. 26 and 27. 



JUDICIAL NEPOTISM. 267 

Finally an Act was passed, under which a Commission was to 
be appointed, '' to take full and exact tryall of all abuses and ex- 
orbitancies or exactions practised in prejudice of their Majesties 
Lieges in any offices of Judicature . . . and how the said abuses 
have crept in, and from what time, and to take notice and tryall 
of the Authors and Committers thereof/' The same Commission 
was to complete the work which had been left undone by that 
of 1672 — ^the Begulation of the Inferior Judicatories.* The 
gravest of the charges against Stair, that he favoured his 
own sons as advocates, appears to have been unfounded. It was 
indignantly repudiated by Stair himself in his Apology, although 
the manner of his repudiation, as Mr. Burton has remarked, 
shows that this evil practice was then prevalent. " When my 
sons came to the House," he says, " I did most strictly prohibit 
them to solicit me in any case, which they did exactly observe, 
and may safely declare it upon their oaths ; and it is known 
to many others, that there might be no suspicions of their taking 
anything on my account, but only what was proper in their 
station." 

It is a sign of some progress in public morality that although 
subtle forms of nepotism may still occasionally occur,^ this one is 
unknown. At that time it was so common that the slang name of 
"peats" or "pets,"' came into Yogae for the individuals favoured. 

1 1693, c. 34, Act Pari. iz. 331. 

^ The qaestion how far patronage may be exercised Id favour of relations 
or friends in preference to others of equal or greater merit has not yet been 
solved by the casuists ; but it has been conveniently settled by politicians and 
men of the world, that it may be so exercised by all patrons, and its exercise 
condenmed by all who are not patrons. Perhaps a safe rule, if not too high 
for human nature, would be that relations or friends should not be preferred 
unless clearly of superior merit 

^ The origin of this name is obscure, some deriving it from Peter, as the 
Scotch called Patrick, the first son of a judge so favoured. ''When a 
suitor came to the judge to solicit, my lord enquired ' Have you consulted 
Pat ? ' if the answer was affirmative, the usual answer of his lordship was 
' 1 11 inquire of Pat about it ; go home and mind your business.' " Others, 
with more probability, derive it from ** Pet." See the amusing pasqufl, Robert 
Cookie Petition ugainH ike PecUSy in Maidment's Scotch Pasquils, p. 222 : — 



268 LORD STAIK 

But althougli the Court did not undertake completely to 
reform itseK — a duty which it would perhaps be too much to 
expect of any Court — ^there is evidence during the second as 
during the first presidency of Stair, that he was not heedless of 
abuses, or inattentive to the improvement of the administration 
of justice. Towards the end of 1690 a series of rales of court 
were enacted to prevent the solicitation of judges, and to guard 
against the suspicion of partiality, which cast, even when false 
(nor was it always false), grave discredit on the Court. The 
servants, by which term must be understood clerks of the 
judges, were forbidden to act as agents in processes, except in 
their own or their masters' causes.^ 

The Acts of Sederunt against Solicitation, of 6th November 
1677, and 24th December 1679, were printed, fixed on the 
walls of the Outer-House Court, and ordered to be observed. 
The judges present engaged on their honour that they would 
observe these Acts, and this declaration was to be renewed 
each session.^ A custom of delivering papers to the judges at 



<( 



The hiunble petition of Master Robert Cook, 
Haveing spent aU liis money in foUowing his book, 
Now humbly doth shew to the Lords of the Seat 
That he 's likely to starve unless made a Peat ; 
Yet first he must know whose Peat he must be. 
The President's he cannot, because he has three, 
And for my Lord Hatton, his son, now Sir John, 
By all is declared to be Peattie Patron." 

After running through the other judges in similar style, the satirist 
describes the Peats : — 

** They plead without speaking, consult without wryting, 
And this they doe by some inspiratione, 
And now they have found out a new way of flytting 
Which they doe call solicitatione." 

And concludes :— 

" Mr. Cook having considered the nature of the Star, 
Doth find it portends neither famine nor war, 
But destructione of the Peats and confusione of the Lords, 
For which he doth pray in the following words : 
* Most reverend Comet with the worshipfuU tail, 
On the Lords' soul-les peats come thunder and haill ; 
For he plainly doth see if they be alive 
He can never expect to prosper or thry ve.' " 

1 A. S. 7th Nov. 1690. « A. S. 11th Nov. 1690. 



REFORMS BY ACTS OF SEDERUNT. 269 

their own houses having given rise to much and it is to be 
feared well-deserved scandal, was put a stop to, and the boxes, 
still used by the judges, were introduced, into which all their 
papers were to be deposited.* 

The admission of advocates, and the favour showb to their 
own kindred, the side on which Scotch judges were most acces- 
sible to corrupt influences, are brought into curious juxtaposi- 
tion by two Acts of Sederunt of the period. The first declared 
that the Lords were sensible that allowing the extraordinary 
maimer of trial (which was by examination only in Scotch 
instead of both civil and Scotch law) in favour of persons 

^ A. S. 29th November 1690. This Act gives so curious a picture of a 
state of things which has passed away, that I give it at length ; — '* The Lords 
of Counoell and Session, taking to their serious consideration the great incon- 
veniency of soUicitation, which creates difidence in those who have not 
acquaintance or friends to recommend them, that they are not equaUy started 
and putt upon them to go to every Lord's lodgeing, imagining that if they 
do not that he may think that he is either despised or distrusted, which is a 
slavery upon the leidges, upon the Lords, and upon the lawyers, who are 
frequently urged by their clients to go with them or for them to solicite the 
Lords : Therefor to prevent so evill a custom, which is contrair to several 
Acts of Sederunt, and contrair to the practice of the most civiU nations 
abroad, the Lords have renewed and enlarged the Acts of Sederunt against 
soUicitation, and because they find the chief cause of soUicitation is the 
pretence that the leidges think they are not schure that the Lords get their 
informations unless they deliver them in their own hands, and therefor take 
occasion to solicit. For preventing whereof, and for easing the leidges them- 
selves, and the lawyers, they, according to the example of the most famous 
judicatories abroad, have appoynted boxes for every one of the Lords, to 
stand on a bank in the Session House from three o'clock to seven o'clock at 
night, each box having a slitt in which the informations and bills may be 
let in and cannot be drawen out until the box be opened, the key whereof is 
to be keept by the judge himself, and to be committed to no other ; and each 
Lord is to send for his box at 7 o'clock at night, that he may have competent 
time to peruse aU the informations therein, and to consider the cause and 
the citations aUeged in the same, whereby none of the leidges can be put to 
trouble to attend any of the Lords for giving their informations, bills, or 
answers. Therefore the Lords do declare That they wiU receive no informa- 
tions, bills, or answers any other way ; and that the receiving the same any 
other way shaU be holden as soUidtatione, except those Lords who are to 
report, who may receave the informationes of the parties being delivered to 
the clerk of the process, and by the derk with the process to the reporter." 
—A. S. 29th Nov. 1690 ; see further on the Boxes, A. S. 2d June 1691. 



270 LORD STAIR. 

nearly related to any of their number, might encourage their 
relations to importune the Lords to procure their entry that 
way, and thereby give occasion to misconstruction and 
clamour, and provided, "" That in time cuming no person shall 
be admitted advocate being cousin-german or of any nearer 
degree of kindred to any of the Lords, ordinary or extraordinary, 
unless they undergo the ordinary trial mentioned in the fore- 
said Act of Sederunt ; and this shall be extended to degrees of 
affinity as well as consanguinity."^ The other Act, while it 
shows the former had not been completely successful, is re- 
markable also for its recognition of the value of the study of 
the municipal law. Proceeding on a preamble that the Lords 
had been importimed of late by frequent applications of persons 
craving to be admitted advocates without undergoing ''their 
ordinary tryall, both in our law and the civil law, observed 
these many years bygone, and approven by Acts of Sederunt ; 
and it being expedient to prevent the inconveniences that may 
ensue upon the granting of such petitions to persons imquali- 
fied, although, on the other part, it were not reasonable to 
exclude persons who have sufficient skill in the municipal law 
because they have not studied the Boman civill law ; therefore 
the Lords declare that in time coming they will not dispense 
with the ordinary way of tryall of advocates unless first they 
be well informed of the person's integrity, good-breeding, 
honest deportment, and fitness for receiving the office of an 
advocate, and that he has attended the house a considerable 
time for qualifying himself thereto ; and thereupon they wiU 
remit him to the Dean and Faculty of Advocates to be tryed 
concerning his knowledge of the practique of our law, the styles 
and forms of process; and that a report be returned thereof 
under the hand of the Dean of Faculty, with a certificate of his 
consignation of the dues accustomed to be pedd at the entiy of 
such advocates before he be admitted. And that importunity 

^ A. S. 24th November 1691. 



PROCEDURE AND SUBSTANTIVE LAW. 271 

may not prevail upon pretences of relation to the Lords, it is 
hereby declared that no one is to have the benefit of this Act 
who is cousin-gennan or of nearer degree to any of the Lords, 
ordinary or extraordinary, and this be extended to degrees of 
aflanity as well as consanguimty »» 

The procedure of the Court was regulated by several Acts, 
most of which, however, relate to temporary abuses, or to forms 
now obsolete. Yet even amongst these one deserves men- 
tion> which after stating that many inconveniencies arise from 
the large and unnecessary congestion of narratives of matter of 
fact in informations and bills, spending a great part of the lieges' 
time unprofitably in reading thereof, declared that the Lords 
will " take no notice of, nor give any answer to matters of fact 
in bills and informations except such as shall be distinctly pro- 
posed, and the articles thereof marked on the margin, or which 
bear that the alleadgers offer to prove their alleadgeances." 

Some of the Acts of this period trench on substantive law, 
and do not deal with the law of procedure merely.^ Kirk and 
market attendance, at which, by the customary law of Scotland, 
elided reduction of deeds on the head of deathbed,^ was declared 
to mean attendance when people were gathered together in these 
places for public meeting, and not a chance visit. The fieivour 
shown by the Court to what is called the '' excellent law of 
deathbed " was due to the danger apprehended from the influence 
of the terrors of the Catholic clergy in the last hours of life. It 
was provided in another Act that no aliment would be allowed 
to parties who had a depending action, unless it was shown 

^ A. S. 25th Jane 1692. > 29th February 1692. 

' This law, now abolished, 34 and 35 Vict c. 81, had been introduced by 
the custom of Scotland in feudal times. — See Regiam Majestatem 2, cap. 18, 
sections 7 and 9 ; Leges Burgorum, cap. 101» and the curious questions and 
answers of the Burghs of Perth, Lanark, Edinburgh, and Aberdeen, "oflf 
landis gevin in sickness," printed in Act. ParL i 359. OriginaUy a deed 
disposing of land made on deathbed was reducible at whatever date there- 
after the grantor died, but his surviyal for sixty days, by 1696, cap. 4, 
validated the deed. 



272 LORD STAIR 

there was a surplus clearly belonging to them, and that judicial 
factors ip sequestrations of estates should be liable for the 
annual rent or interest of the rents they recovered, or might 
by diligence have recovered, within a year after they -became 
due.^ 

In order to enable tutors to make up exact inventories of 
their wards' property, it was enacted that the repositories of 
deceased persons whose successors were under legal incapacity, 
such as minority or insanity, should be sealed by the nearest 
of kin on the father's and mother's sides present at the time, 
and handed over to the Judge Ordinary, by whom they were 
afterwards to be opened in the presence of the nearest relatives 
on both sides, to see if they contained any deed nominating 
tutors. Tutors and curators who did not make up inventories 
were by an Act declaratory of a Statute of Charles n. not to be 
allowed even necessary and profitable expenses of legal pro- 
cesses, but were to be allowed what had been expended 'on the 
entertainment of the pupils, or on their houses and estates. 

The judicial sale of bankrupts' lands, a frequent subject 
both of legislative and judicial enactments, was still further 
regulated' — provision being made for greater expedition in 
procedure. 

In the absence of an accurate discrimination of administra- 
tive and judicial functions, we find the Court also engaged 
in imposing and regulating the stent or tax for cleansing the 
town of Edinburgh,* limiting the price of wines,' and ordering 
the removal of beggars, except those who had badges, who 
were to be allowed to beg at the doors of dweUing-houses, but 
• not in the streets.* 

In 1695, the year of Stedr^s death, there was published in 

1 A. S. 31st July 1690. « Ibid. 23d November 1692. 

s Ibid. 24th February' 1692. « Jbid. 26th and 29th February 1692. 

^ The pint of the best French wine was not to exceed twenty-eight 
shillings Scots, and that of the best Spanish forty shillings. 
« A- S. 4th July 1692. 



VINDICATION OF DIVINE PERFECTIONS. 273 

London a small octavo volume, entitled *' A Vindication of the 
Divine Perfections, illustrating the Glory of God in them by 
Season and Bevelation, methodically digested into several 
Meditations. By a Person of Honour/'^ This work has been 
generally attributed to Stair, and there is no reason to doubt it 
is his. It bears internal evidence of his style, and has several 
references to the Physiologia, while its reasoning constantly 
reminds the reader both of that work and of the InsHttUions. 
The conjecture of Dr. Irving is highly probable, that part of it 
is alluded to under the name, of an Inquiry concerning Natural 
Theologie in his contract with his printer in 1681. It had, 
however, never been published until now, when it was printed 
anonymously, with a Preface by William Bates and John Howe, 
two English Nonconformists of great eminence and Arminian 
leanings. With Howe Stair had probably formed an acquaint* 
ance in Holland, where he took refuge at Utrecht in 1686, 
returning to England in 1689.^ In commending it to the public 
they observe: — "We have here an inimitable and instructive 
Example to Great Men, the Dignity of whose Stations in the 
World too commonly seems to plead an Exemption from a 
more Sedulous Intention and Application of Mind to the 
Affairs of Beligion that have final Beference to another World. 
This Performance of the Noble Author shows it to be a thing 
not impracticable, as it is most praiseworthy, amidst the greatest 
secular Employments to find Vacancy, and a Disposition of 
Spirit Ik) look with a very inquisitive Eye into the deep Things 
of God : which (if it were the AuthoT^a Pleaewre to he knaum) 

^ London : Printed by J. D. for Brabazon Aybner at the Three Pigeons ia 
C!omhiU. mdcxov. 

^ Calazny, Life qf John Howe^ p. 126. Macanlay, ii. 223 : " If any man 
stood higher than Baxter in the estimation of the Protestant Dissenters, that 
man was John Howe. Howe had, like Baxter, been personaUy a gainer by 
the recent change of policy. The same tyranny which had flung Baxter 
into gaol had driven Howe into banishment; and soon after Baxter had 
been let out of the Ring's Bench prison Howe returned from Utrecht to 
England." 

S 



274 LORD STAIR 

would let it be seen the Statesman and the Divine are not 
Inconsistencies to a great and comprehensive mind ; so as to 
consider them with Distinction and without confoandiog them 
or making the two spheres intersect one another ; so that in so 
large a Theological Work here is no Mixture of Political 
Matters except where in the Nature of the things themselves 
they are Contiguous." 

In this book, as in everything Stair wrote, there is an 
admirable distinctness of conception and lucid order in the 
treatment of the subject proposed It is divided into eighteen 
Meditations, of which, though the condensation of the thought 
makes it difficult, a brief outline wiU here be given. Besides 
its intrinsic value, it exhibits a part of Staif s character which 
otherwise would be imperfectly known, and has been misre- 
presented 

The Introductory Meditation^ states the purpose of the 
work. The greatest Duty of Man is to delight in God, and 
this forms his highest happiness, but sueh delight can only 
arise from a knowledge of the Perfections of God, for according 
to the measure of the distinctness of the Object is the degree 
of our delight in it Nor ought this knowledge to rest in a 
mere general belief that God is endowed with all possible 
Perfection ; there ought to be a diligent search into the several 
divine Perfections. The natural order of these is thus ex- 
plained : — " The divine Dispensations must be posterior, even 
in time, to his Purposes or Decrees ; his Decrees being free 
must pre-suppose his Freedom and his Will, and these must 
presuppose his Understanding and Wisdom, and all must be con- 
ceived as imto or from a subject to which they are relative." These 
topics are therefore treated in the work, which follows, in their 
reverse order. God as a subject is considered in two Meditations,^ 
" Upon (Jod being a Spirit," and " Upon the Self-Existence and 
Eternity of GoA" Being a Spirit is the only attribute that 

^ Meditation i ^ Meditations ii. iii. 



QOD THE ONLY PURE SPIRIT, 275 

presupposes nothing anterior. Being a Spirit is the subject of 
all the Divine attributes, for the being God essentially com- 
prehends them all. God is distinguished from angels and the 
souls of men, for these, though they have not extension like 
material bodies, are not purely spirit, which God only is, for they 
cannot co-exist as He can with any other created substance in 
the same space. That God is the only pure Spirit is also 
proved by Scripture.^ A truly immaterial Spirit must have — 
(1.) Cogitation or Thought; and (2.) be without Parts, and 
Indivisible;^ mnst (3.) be Omniscient, for there can be no 
reason why it knows one thing more than another ; (4.) cannot 
want Capacity to determine itself and to choose ; (6.) cannot 
otherwise Act upon Matter than by the Determination of 
the Will, and must be Omnipotent, for "there can be no 
reason rendered why the Action should be rather of one 
kind than of another." ' He condemns the error of those who 
regard God as a Substance far more pure than the purest air 
beyond this sensible world, and that of the Anthropomorphists, 
" who apprehend God under the detennined bounded Figure of 

1 John iv. 24 ; 2 Cop. iil 17. 

' Stair's argument as to God being without parts and indivisible is, that 
if the diyine Spirit have Parts the Ck>gitation must either be in the whole, 
or in more Parts, or in one Part only. If in the whole, then the separation 
of any part loses the Cogitation, and so the Spirit is annihilated. Nor is it 
oonceivable how a Thought can be in many subjects, for Parts are many 
though they cohere in one Body. If in more Parts severaUy, then there are 
as many Spirits as Parts in which the Cogitation is. If Cogitation be but in 
one the rest were superfluous matter. 

' The principle of Sufficient Reason, as it was called by his contem- 
porary Leibnitz, plays a great part in Stair's philosophical and theological 
systems. " By this single principle," viz., *' that nothing happens without a 
reason why it should be so, rather than otherwise," wrote Leibnitz to Dr. 
Clarke, ** may be demonstrated the being of Ood and all other parts of Meta- 
physics or Natural Theology; and even in some measure these physical 
truths that are independent of Mathematics, such as the Dynamical Prin- 
ciples, or the Principles of Forces." Dugald Stewart's criticism of the 
vagueness and insufficiency of this principle as employed by Leibnitz is 
equaUy applicable to its use by Stair. — See Dksertation on Progress of 
Philosophy, ed. 1854, p. 269. 



276 LORD STAIR. 

a map, or of any other creature^ as well as of those who make 
bodily Figures to represent him as the Bays of Light in a 
round or triangular Figure, or in such a shape of a man as he 
was represented to the Apostle John in the Bevelation." 

The Self-Existence of God is shown by the acknowledgment 
of all sects who have pretended to any learning that there is a 
self-existent Being. Even Atheists acknowledge this, though 
they deny knowledge to the Active Cause, and suppose it to 
work by fatal Necessity. Both revelation and reason however 
prove Creation to be not only possible but tru& The objection 
that a vacuum is inconceivable without conceiving Longitude, 
Latitude, and Profundity, and therefore the eternal existence 
of matter, is unfounded, as he had elsewhere shown.^ God 
alone, he observes, has self for his end ; as Scripture expresses 
it; ** He hath made all things for Himself," and that ** of Him 
and for Him are all things ; ^ and He is eternal, ** for whatever 
is existent without a cause of its existence must necessarily 
have been ever existent." 

From God as a subject, he proceeds to consider the know- 
ledge or imderstanding of God — as Omniscient.* Knowledge 
is implied in the conception of a self-existent spirit, for 
'' neither the want of extension or the having of penetrability 
make a spirit." According to Bevelation, God's understanding 
is infinite. It cannot be temporary, or successive, or have 
degrees, or be the result of habit as human knowledge is, or be 
derived from outward impressions, '^ because He is altogether 
impassible, and can admit of no alteration made on Him from 
without." Hence there is no more difficulty in apprehending 
Gk>d's foreknowledge than his knowledge, for neither arises 
from impressions of objects. But the opinions are false that 
God acts either immediately on all created things, or concurs 
in all their acts or motives ; for if creation be acknowledged, it 
follows that there might be given to matter '' an attempt or 

^ This refers to the Physiologia, ^ Meditation iv. 



OOD'S OMNISCIENCE AND FREE WILL. 277 

pressure to move in such an uniform course of motion which it 
would ever follow if it were not hindered, and would always be 
effectual when the Impediment were removed/' and to creatures 
their proper activities. He concludes this meditation with 
an argument against God being the author of evil, and against 
universal predetermination. 

From the Knowledge he passes to consider the Will ^ of 
God, and argues that although nothing exists without that 
Will, it is possible that He might have willed otherwise than 
He has done — in other words, that the Divine Will is free. 
He here combats the notions of the eternity and indestruct- 
ibility of matter. Seasoning from the analogy of man, plea- 
sure is neither an act of the understanding nor of the will of 
God, but an object, viz.. His own infinite perfection, and the 
natural or moral perfection of His creatures ; hence it follows 
that God has no pleasure in the sin or death of His rational 
creatures, which He permits merely. " The blessed and benign 
God doth never intend the misery of His creature abstractedly 
and simply, for His last End is His own glory, whereunto the 
misery of the Creature is no mean, but the Act of Justice upon 
the sinning creature.** The Will of God differs from that of 
man in that He never wills the impossible, or exercises a 
conditional Act of WiU. 

The Power* of God is next treated. Power is defined as 
the principle of Action or Operation, as these are distinguished 
from Thought and Intention, and the perfection of God's Power 
is ** that it can work all it C€ui will, but doth work only that it 
doth will," for God limits the Acts of His Power by all His 
Moral Perfections; He does not abstain from doing evil for 
want of power to do it, but because it is unworthy of His 
Nature. Another limit to the actual exercise of the Power of 
God is that He cannot create a body so great that He could add 
nothing to it, or give an infinite motion to any body, for to do so 

^ Meditation v. ^ Meditation vL 



278 LORD STAIR. 

would be to exhaust His Power with regard to it, whereas His 
Power is inexhaustible. Hence the notion of the schoolmen that 
there are real beings necessary and eternal, and of recent philo- 
sophers that matter is eternal, are "but the births of man's 
brain, inconsistent with the infinite Perfections of God, encroach- 
ing upon his Power, his Freedom, and his Wisdom." God's 
Power is regulated by all His active Perfections, by His Will, 
by the unchangeableness of His Decrees, by His Purity and 
Holiness, by His Bounty and Mercy, by His Justice, Fidelity, 
and Truth. But as regards Will, God's Power is exerted not 
merely according to BKs Will, but by the sole Acts of His WiU, 
and this power is an inconmiunicable Perfection of Gk>d, and 
''therefore it is impossible that any Creature should create, and 
no moss consistent than that God should make more Gods." In 
connexion with this he takes occasion, in a forcible passage, to 
state his opinion of the doctrines of Transubstantiation and 
Baptismal Eegeneration. " I pray God Men would advert and 
consider what ground there is to believe that God hath given a 
Power to a Priest or Minister, that at his Desire, so oft as he 
pleases to express the words of Consecration of Bread and Wine 
in the Eucharist, the most stupendous miracles should then arise 
of course, or that by their Consecration the Elements should have 
a Power and Efl&cacy to confer Grace, or otherwise to confirm 
it, than that by the solemn Preparation of the Heart and the 
earnest Prayer of the Creature God would more readily grant 
their Desire than at other times ; or how by applying the water 
in Baptism at Desire Original Sin should be foigiven, or Grace 
should be given, which encroacheth not only upon the incom- 
municable Power of God, but upon his Wisdom, that He should 
give Grace to all that were baptized, which in the most part 
would prove frustaneous by being lost." 

In the Seventh Meditation, on the Oneness^ of God, that 
doctrine is deduced from the Omniscience and Omnipotence of 

^ Meditation viL 



UNITY OF GOD. 279 

God. The doctrine of the Trinity, including the doctrine of 
the Incarnation, is briefly stated as revealed by Scripture, and 
is acknowledged to be "a Mystery, and the greatest Mystery, 
ushered in with an unparallel'd note of Attention, 6fjLo\oyov/M€Pw^, 
* Great is the mystery of godliness, God manifested in the flesh.' '' 
Theu'^oUows a curious argument in favour of the view that 
the original belief of mankind was of One God, from the ex- 
ample, *' not only of the Jews, but of Job, Balaam, Moab, Ammon, 
the sons of Lot, Ishmael, and the Three Wise Men of the East 
led by a star to Bethlehem." ^* So that we have no ground to 
doubt that the knowledge of the one God did long and largely 
propagate itself in the world, though through defect of History 
the particulars be little known." ^ He afterwards rapidly traces 
the origin of polytheism amongst the Greeks and Bomans, and 
the corruptions it gave rise to in imperial Bome when " Christ 
came^ to bring life and Immortality to light, and the Grace of 
God so far prevailed that a great part of the World embraced 
the Christian Beligion upon its own account, not only without, 
but against all worldly interest" But after the Boman 
Emperors had accepted and established it, corruptions again 
ensued. " In place of the Heathenish sacrifices the Eucharist 
was made the Sacrament of the Altar, the Presbyters were 
made Priests, and in place of the Heathen Demigods came the 
Canonized Saints ; and not only their Ghosts in Heaven, but 
the Belicks of their Bodies upon Earth, were brought in to share 
with God in Adoration, without any other but a verbal distinc- 
tion." iLgainst Saint-worship he protests as a derogation from 
the Unity of God, and incommunicability of His Divine Per- 
fections. He concludes this Meditation with defending the 
mysteries of Christianity as believed by a new inward sense 

^ That monotheUm preceded polytheism is a thesis still defended by many. 
See Professor Lorimer, InstUutea ofLaw^ p. 68, and authorities there referred 
to. It has, however, lost its importance as an argument in Natural Theology, 
since it has been shown that worship of natural objects in many races preceded 
both. 



280 LORD STAIR 

granted by God to the regenerate only, and with a distinction 
in favour of compulsion in religion so far only as clear by 
the light of Nature, declaring that '' it is both against Beligion 
and Humanity to compel Men to supernatural and institute 
Eeligion where they believe not these revealed Principles from 
which Ordinary Capacities cannot refuse clear Inferences which 
require not long Deductions." ^ 

The Eighth Meditation is upon God's Freedom.^ After dis- 
cussing certain distinctions of Freedom, which he observes is a 
relative term, he defines it as *'the Hability of Self-determina- 
tion upon a rational motive." God's freedom is determined by 
His moral perfections, so that He will never do anything that 
is not suitable to and becoming His natural perfections. 

The two next Meditations deal with the Blessedness ' and 
the Holiness^ of God. The previous perfections he regards as 
natural, but '' Holiness of God and of Creatures exists in the 
Congruity of their voluntary actions to their natures." In treat- 
ing of the Unchangeableness'^ of God, he guards against several 
errors in this doctrine, as that God works without regard to 
particular circumstances, or that '' He could not consider the 
actings of His free Creatures in any of His Decrees, but behoved 
with a little consideration of decerning to design Bejection and 
Eternal Misery of some, as of the giving of Grace and Eternal 
Glory to others,"' or that He must always act in the same way. 
The true meaning of it is, " that His eternal Purpose or Inten- 
tion, being fully suitable to his Divine Nature, could therefore 
never be changed; and by His Omnipotence it could never 
fail of the intended Effect." 

In considering the Groodness^ of God, the illustrations given 
of it show how fixed some of the ideas he had published in the 
Physiologia were in his mind. After stating the creation of 

^ The meaning of the conclading words in this passage is not quite clear, 

bat the general sense appears to be in favour of a wide toleration in religion. 

^ Meditation viii ^ Ibid. ix. * Ibid, z. ^ Ibid. zi. ^ Ibid, zii. 



600DJ!fE8S AND TRUTH OF GOD. 281 

rational creatures as the first act of Gkxl's goodness, and the 
endowment of man with the capacity to know consequences, he 
mentions, as other instances of it, the wonderful structure of 
the human body, the union of the soul and body, and the 
inbred inclinations which God has given to the soul — ^the love 
of God as the sovereign good, the love of mankind and the love 
of self, which is also a gift of God, and good when kept within 
bounds. Besides these general principles, God, he says, has 
imprinted ''special principles on the soul which operate like 
Instincts without reasoning, as the desire of happiness, the 
care to preserve life, the abhorrence of cruelty, the desire to 
relieve the innocent oppressed, gratitude to benefactors, faith- 
fulness to those who do rationally rely and trust, love to those 
in society, and friendship, specially that which is most entire 
and absolute by marriages, and the mutual natural affection of 
parents and children." 

It also, he adds, recurring to a favourite idea, proves " the 
goodness of God that the Discovery of the Natures of the 
Creatures and all the Experimental Knowledge hath proceeded 
from the beginning, and shall to the end increase, that there 
might never be wanting a suitable Exercise, Diversion, and 
Delight to the more ingenious and inquiring men." 

In discussing the Truth ^ of Grod he points out that it is the 
necessary foundation of the certainty of knowledge, both 
natural and revealed. Truth he defines as the conformity both 
of signs or words to thoughts, and of thoughts to their objects. 

He next treats of the Justice ' of God, and distinguishes 
the kinds of justice into Commutative, more properly called 
Attributive, and Distributive, the old Aristotelian division ; to 
which he adds Judicial, by which he seems to have understood 
a species of Distributive Justice, where a judge imposes rewards 
and pimishments.^ God's attributive justice differs from that of 

^ Meditation xiiL ' Meditation ziv. 

^ He here remarkB incidentally, " Kings and States ought not to be both 



282 LORD STAIR 

men, '' who may take nothing from man that is his own, but as 
to God men's goods, honour, and freedom are but precarious 
during His pleasura'* He inclines, however, to answer in the 
negative the question whether Grod might take away the life of 
His innocent rational creatures. 

As regards Grod's punitive or judicial justice he observes 
that it imparts " an exact proportion of rewards and punish- 
ments to the objects of them, where man can neither know the 
exact proportion nor adjust a* punishment to expiate any sin. 
Man's justice is not to satisfy justice or expiate crimes past, 
but to prevent them for time to coma" 

In his Meditation on the Mercy ^ of God Stair refuses to go 
the whole length of the Arminiah doctrine, that "Christ died 
equally for all men, and procured them xmiversal Grace, that 
they may repent or not at their option ; " but he also opposes 
the Calvinistic extreme, "that Christ purchased nothing except 
for the elect," and in stating his own view seems to differ 
very little, if at all, from the Arminians, for he holds that 
though there is no Grace given to the Beprobate, yet " that it 
is sincerely offered to all that come to discretion, and that 
it was the Seprobates' fault that they did reject it" He 
concludes with the observation that " there is more of mercy 
expressed in the whole of Scripture than of all other Divine 
Perfections, the main scope thereof being to show the Mercy of 
God towards Mankind." 

The Faithfulness ^ of' God leads him to consider the leading 
Protestant doctrine of Justification by Faith, for it would be 

Judges and Parties where others can be had, but before they enter in War 
they ought to demand Satisfaction and give sufficient evidence of the fact, 
and not decline Arbitrement where an indifferent Judge can be found.'' This 
is not the only instance of views on statesmanship beyond his age. In 
another passage he writes : — " If it wese not for these perversions the whole 
Race of Mankind might become one Commonwealth, God having given an 
inbred Principle to Mankind to prefer the interest of the whole to that of 
any part.*' — Vindkatian^ p. 252. 

^ Meditation zv. s Meditation xvi. 



WISDOM AND DOMINION OF GOD. 283 

inconsistent with it that Grod should disappoint the Faith of 
His creature& So he declares unhesitatingly that " Faith is 
the only consideration on which Gk>d gives Pardon^ Beconcilia- 
tion, and Happiness^ and not upon Love or any other good 
Work, as never to be claimed upon rewarding Justice or Merit, 
but of free Favour and Grace alone." 

In treating the Wisdom^ of Gk)d he observes that '4t were 
a Task never to be ended to pursue the Wisdom of God in all 
his Decrees and Dispensations, of which little can be reached 
in the State of Mortality ; yea, it will be the exercise of the 
Mind to Eternity in the State of Glory, yielding and increasing 
a Continual Delight." Obliged to select some eminent instances 
of it, he dwells chiefly on the Acts of Creation, following the 
order of the Book of Genesis, and using freely the argument 
from design. 

He concludes his work with a chapter on the Dominion^ of 
God, and His Dispensations thereupon towards His Bational 
Creatures, especially by the Covenant of Works and the Cove- 
nant of Grace. In the Dominion of God over the world, and 
His dispensation towards Man, he sees the most complete 
exhibition of all the Divine Perfections jointly. 

The question forces itself. What is the value of such specu- 
lations as these ? To some they appear mere word-play, use- 
less distinctions, verbal definitions. It is beyond doubt that 
we see in them the method of the scholastic logic applied to 
Protestant theology. But beyond the question of method there 
is one of substance. Perhaps we live in an age too regardless 
of inquiries of this nature fairly to appreciate them — which 
has declared its preference for criticism rather than logic, science 
rather than theology. Nor can this line of argument have any 
validity for those who do not admit its basis, denying either 
explicitly or implicitly the existence of God. For those who 
acknowledge a Supreme Being, the Creator and Governor of the 

^ Meditation zviL ' Meditation xriii. 



284 LORD STAIR 

world and man, the case is dififerent Such persons may either 
never turn their thoughts towards the character of God at all, 
or they may reigard it as incomprehensible by the finite reason 
of man, or they may try to conceive it distinctly. 

The firsts though the most common course, cannot be 
seriously defended. The second cannot satisfy, to use Stair's 
expression, the inquiring spirit of man, which demands some 
knowledge of the object of religion. The third, which is that of 
Stair, appears the more worthy course to adopt ; and whatever 
defects there may be in the assumptions or the reasoning which 
are usually to be found in such inquiries, and are certainly not 
absent from the treatise of Stair, it is the mark of a powerful 
mind to have attempted to rise " to the height of this great 
argument," which " asserts Eternal Providence, and justifies the 
ways of God to men." 

On 26th November 1696, in his seventy-seventh year. Stair, 
who had been in failing health^ for some time, died in his house 
in Edinburgh. The inquiry into the massacre of Glencoe, which 
had ended in the Beport incriminating his son, and the attacks 
on himself and his family, would have tried the spirit of most 
men. Stair, as we see by his Apology, was not indifferent to 
such attacks ; yet he was probably not deeply or long affected 
by them. Through the changing scenes of his life his mind had 
known how to preserve its calm. 

" Certainly a great part of the governing of Man," he writes 
in his Meditations, " is by determining his Thoughts to par- 
ticular objects ; the Mind's reflectiog on its own Working and 
Experience will solve the DiflSculty, and will find that some 
things will frequently and almost continually recur to the 
Thoughts ; and above all, the Mind can always recur to the 
Thoughts of God, wherein if it be not perverted to shun the 

^ " The President is very anweU ; Presmennaii and Newbyth are invalidfi, 
and I doubt if they can return to the Session ;" 26th October 1695, Sir 
^ames Ogilvy to Mr. Carstairs. — Carstairs's State Papers, p. 263. 



ma DEATH. 285 

countenance of these Thoughts, it cannot miss some measure of 
Cure against any hurtful Pleasure or Grief."* 

There may be persons who see in such language hjrpocrisy 
or self-delusion; they will appear to others the utterance of 
a sincere and deep experience. 

He was buried in the Church of St Giles, with the solem- 
nities usual for one in his station. No monument marks the 
spot where he lies. The Scottish nation have till recently 
been chary of commemorating their great men. It is only a 
few years since a tablet, trod on by many, but observed by 
few, was placed close to the same Church over the grave of 
Knox, the Eeformer of their Church.* A similar mark of respect 
may perhaps yet be paid to the chief author of their Law. 

The personal appearance of a notable man has always an 
attraction to his fellows ^ — nor is it to be despised as an index 
of character, though its signs are often difficult to interpret 
Stair appears to have possessed some share of the personal 
beauty which made his son the Master, and his grandson the 

^ Ftfidioo^iofi, p. 9. 

' "When nations, slowly wiM and measly JQst, 

To bnried merit raise the tardy bust." 

Tet silence is better than the babble of those who, pretending to honoor the 
dead, seek to glorify themselves, their party, or their sect. 

' Of portraits of Stair I know only two—the one a miniatore by Sir 
John Medina, a Flemish artist, the pupil of Rubens and Dnchatel, who was 
invited to Scotland by Lord MelviUe, and painted many of the nobility and 
gently of this period. There is a copy of larger size of this, and both 
miniatore and copy are now the property of his descendant, Mr. Charles 
DiJrymple of New Hailes, M.P. for Bute. This has been engraved for 
the Bannatyne Clnb, and is common. A second rarer print is engraved in 
Park's edition of Walpole's Royal and Noble Authors, v. 126. Of this I have 
seen a separate but not very good impression. It is taken at a later age from 
a portrait which Mr. D. Laing, to whose courtesy I owe the opportunity of 
inspecting it» conjectures to have been painted by a Scotch artist^ Paton. 

In both he has the same characteristic features, and wears the judicial 
dress of the President of the Conrtb I drew attention some time ago to the 
possibility of other portraits being in existence {Scotch Journal of Juris- 
prudeneej 1868), hoping to elicit some further information on the subject^ 
but as yet without result.^ 



286 LORD STAIR 

Field-MaTsIial, reckoned among the handsomest men of their 
time. Their portraits show that they, as well as his son Hew, 
inherited several of their features from him. A certain grave 
dignity is the most marked characteristic of his countenance^ 
but this is a cast of face sometimes acquired by a judge. 
When so acquired, however, it generally, though not always, for 
it may be affected, indicates a fitness for the judicial office. It 
is the result of many years of study, reflection, and obser- 
vation. of human nature. There is also observable in the eyes 
and lines of the mouth a mildness which is not inconsistent 
with decision of character, but is rarely found in men of keen 
passions. A defect in his neck, which his wig or the flatteiy of 
the artist has concealed, was a fiAvourite subject with the Pasquil 
writers, who certainly painted him without flattery.^ 

Macaulay has drawn chiefly from these satirists all the 
charges his enemies made against Stair, and without examin- 
ing their truth has insinuated others for which even satire 
gave no foundation. ''The man," he writes, "over whose roof 
so many curses appeared to hang, did not, as far as we can now 
judge, fall short of that very low standard of morality which was 
generally attained by politicians of his age and nation. In 
force of mind and extent of knowledge he was superior to them 
alL In his youth he had borne arms ; he had then been a 

^ ** Stan's neckf mind, wyfe, bods, grandaon, and tbe rest 
Are fffry, false, witch, pets, parricide, possessed." 

— 8<Uyre on the Familie ofStaire ; Maidment» Scotch PasquUs, 178. 

<< From crook-legged lawyers and wry-necked judges, 
From all your two-faced subterfuges. 
From soldiers who serve without set wibges, 
Libera nos, Domine." 

—A Litany, 1671 ; Maidment, Scotch FasquOs, 272. 

'* The President wUh his head on one side. 

He swears that for treason we all shaQ be tryed. 
We tell him 'twas not so with Chancellor Hyde, 

And I like my humour weill, boys, 

And I like my humour weilL'' — Maidment, Scotch Pasquils, 221. 



MACAULAT8 CHARACTER. 287 

professor of philosophy; he had then studied law, and had 
become by general acknowledgment the greatest jurist that his 
country had produced. In the days of the Protectorate he 
had been a judge. After the Bestoration he had made his 
peace with the royal family, had sate in the Privy Council, and 
had presided with unrivalled ability in the Court of Session. 
He had doubtless borne a share in many unjustifiable Acts ; 
but there were limits which he never passed. He had a 
wonderful power of giving to any proposition which it suited 
him to maintain a plausible aspect of legality, and even of 
justice; and this power ^ he frequently abused. But he was 
not, like many of those among whom he livec^ impudently 
and unscrupulously servila Shame or conscience^ generally 
restrained him from committing any bad action for which his 
rare ingenuity could not frame a specious defence ; and he was 
seldom in his place at the Council board when anything out- 
rageously unjust or cruel was to be done.^ His moderation at 
length gave offence to the Court. He was deprived of his high 
office, and found himself in so disagreeable a situation that he 
retired to Holland. There he employed himself in correcting the 
great work on jurisprudence which has presei-ved his memory 
fresh down to our own time. In his banishment he tried to 
gain the &vour of his fellow exiles, who naturally regarded him 
with suspicion.^ He protested, and perhaps ^ with truth, that 
his hands were pure from the blood of the persecuted Cove- 
nanters. He made a high profession of religion, prayed much, 
and observed weekly days of fasting^ and humiliation. He 

^ How oonld snoh a power— if he really poasesaed it— be only frequently 
abnaed? 

* It makea aome differenoe whether ahame or oonacience waa the motive, 
nnleaa we accept the philoaophy which identifiea them. 

' The fact ia worth more than the anppoaed inference. 

* No proof of thia haa been found. 

^ No ground for thia " perhapa " haa been diaoovered. 
^ No proof of thia haa been found ao far aa the profeaaion of religion and 
the weekly faat are concerned, but the following paaaage in Wodrow'a 



288 LORD STAIR 

even consented, after much hesitation, to assist with his advice 
and his credit the unfortunate enterprise of Argyla When that 
enterprise had failed, a prosecution was instituted at Edinburgh 
against Dahymple, and his estates would doubtless have 
been confiscated had they not been saved by an artifice which 
subsequently became common among the politicians of Scot- 
land. His eldest son and heir-apparent, John, took the side of 
the Government, supported the dispensing power, declared 
against the Test, and accepted the place of Lord Advocate when 
Sir George Mackenzie, after holding out through ten years of 
foul drudgery, at length showed signs of flagging. The services 
of the younger Dalrymple were rewarded by a remission of the 
foif eiture which the offences of the elder had incurred. Those 
services indeed were not to be despised. For Sir John, though 
inferior to his father in depth and extent of legal learning, was 
no common man. His knowledge was great and various, his 
parts were quick, and his eloquence was singularly ready 
and graceful To sanctity he made no pretensions. Indeed 
Episcopalians and Presbyterians agreed in regarding him as 
little better than an atheist. During some months Sir John 
at Edinburgh affected to condemn the disloyalty of his unhappy 
parent Sir James ; and Sir James at Leyden told his Puritan 
friends how deeply he lamented the wicked compliances of his 
unhappy child Sir John." ^ 

The character of Stair was differently judged by his con- 
temporaries ; and although even amongst them opinions varied, 
the more favourable verdict was pronounced by those who most 

AndUctOj i. 204, has probably been in the writer^s mind: — "His (Stair's) 
carriage, Mr. Warner teUs me, was most Christian when in HoUand, and he 
frequently met with them for prayer, and ordinary once a week keept a 
private day in his family." The author of the Impartial Narrative, Somers 
Trade, Sootfs Ed. xi. p. 552, says : — " He (besides his private devotions) was 
never a day in the worst of times but he read the Scripture and prayed him- 
self twice in his family were there never so great or so many strangers pre- 
sent, which might be a reflection in these days, but I hope not now.'' 
1 ffiaiary <tf England, iii. 264-6-6. 



CHARAGTER BY CONTEMPORARIES. 289 

carefully observed his whole conduct. Mackenzie's panegyric 
of his excellent parts, his universal understanding, his freedom 
from passion, has been already quoted, and while he adds, 
'' Most men thought this equality of spirit a mere hypocrisy in 
him," he does not himself indorse this view. Burnet, indeed, 
describes him ^' as a man of great temper, and of very mild 
deportment, but a cunning man."^ But this charge, which 
Stair's Presbyterian principles probably led the bishop (gener- 
ally inclined to censoriousness in drawing the character of his 
contemporaries) to adopt, does not appear well founded. His 
public life, exposed as it was to the keen eye of jeedousy, does 
not show any sign of cunning, though the poUcy which guided 
it was such as might be so construed by an unfavourable judge. 
He was constant and open in his attachment to moderate Con- 
stitutional Monarchy, and while not indifferent to place, resigned 
it when he could not hold it consistently with his principles. 
It would be more true to accuse him of ambition, but his ambi- 
tion was honourable, and justified by his talents and his public 
servicea Yet his intimacy with Monk and Lauderdale shows 
how difficult it is to walk with firm step and erect bearing along 
that narrow and slippery path. 

His adherence to the Protestant religion and Presbyterian 
form of Church government was equally steadfast For this 
he braved the resentment of the Duke of York and suffered 
exila His piety, so far as it is possible to judge in such a 
matter, was unaffected and Sincere. " He daily," says Forbes, 
'' prayed always, and read a chapter of the Bible to his family 
before they sat down to dinner, and performed the like divine 
service after supper ; " nor is the least remarkable characteristic, 
both of his legal and philosophical treatise, the frequent refer- 
ence to and intimate knowledge of the Sacred Book. In this, 
judged by a modem and critical standard, he sometimes intrudes 
into the province of theology, and borrows from it irrelevant 

1 Burnet, History of his Own Times, i. 369. 

T 



290 LORD STAIR 

arguments; but there seems no reason to question his good 
faith. "He had a great spirit," Forbes adds, "and equal 
temper in the harshest passages of his life. By the constant 
bent of his thoughts to what was serious and profitable, he knew 
how to divert them from any uneasy impression of sorrow. He 
was apt to forget, at least not to resent, injuries done to him, 
when it was in his power to requite them." By Presbyterian and 
Nonconformist divines, who notwithstanding their democratic 
Church polity have sometimes a liking for pious rank, he was 
naturally highly rated. " He was well known to the world,** 
says Wodrow, "by his learned works and shining piety." 
" The clearness and vigour of his spirit," remark the editors of 
his Meditations, " are illustriously visible in managing a sub- 
ject so deep and difficult," and they praise " the disposition 
which led him to look with a very inquisitive eye into the 
deep things of God." ^ Dr. Pitcaim celebrates him, if with the 
somewhat high-flown and commonplace compliments usual in 
modem Latin verse, yet even in that not ordinarily applied to 
a political opponent : * — 

" Si potuit virtus si numina juris et aequi 
Victurum toto nomen in orbe dare, 
Fama tibi crescet multo delebilis »vo 
Atque tuas laudes Phoebus uterque canet." 

The writer of the Impartial Narrative probably detects the 
main cause of the detraction to which he was exposed : — " I 
will not say but the Lord Viscount Stau* is envied by some 
people for his parts and growing greatness, but that should be 
no argument with rational good men, seeing that men's virtues 
ought not to be accounted their crimes." ^ 

As a judge, his close attention to the discharge of duty in 
the minutest particulars was shown by his reforms in the 
procedure of the Court, his care of the Begisters, and his 
records of the Decisions. 

^ Preface to Meditations, by W. Bates and J. Howe, vii. 

' Poemataf p. 51. ^ Somen Tracts, Scott's ed. ii 553. 



PARALLEL BETWEEN HIM AND BACON. 291 

As a Scotch lawyer, amongst the many remarkable men, 
his predecessors, contemporaries, and successors, who have 
followed that profession, no one has disputed his pre-eminence. 
A practitioner in the present day would indeed claim for 
the Institutes of Erskine and the Commentaries of Bell the 
character of more useful works than the Institutions of Stair, 
but these writers reaped the finiits of his labours. That so 
smaU a country has kept itself abreast of advancing jurispru- 
dence, is mainly due to the fact that the foundations of its law 
were so deeply laid by Stair. Notwithstanding the wealth of 
precedents supplied by the English and American Courts, 
often, though not always, presided oyer by abler judges than 
those of Scotland, his Institutions will bear a favourable 
comparison with the most celebrated treatises on English law 
— ^the Institutes of Coke, the Commentaries of Blackstone and 
of Kent. 

The parallel between Stair and Bacon was too obvious not 
to have been made. Both combined the study of law and 
philosophy. Both held the highest judicial office in their 
respective countries. Both shared the penalties which fre- 
quently attend successful ambition. 

Yet, when we look closer, there is more contrast than like- 
ness. Stair's single philosophical treatise can be regarded only 
as the recreation of an active mind in another than its ordinary 
sphere. It does not seem to have had any influence in his 
own time, and has been forgotten since. Bacon gave a new 
direction in this coimtry to every branch of philosophical 
inquiry, physical, moral, mental On the other hand, Bacon, 
though no mean lawyer, and with many far-sighted ideas for 
the reform of law which have not yet been fully carried out, 
did not himself do much for a profession which was to him a 
servant to be used rather than a mistress to be loved. One 
who took all knowledge for his province must have at times 
looked down, as from a great height and a serener air, on the 



292 LORD STAIR 

world of the lawyer and politician, clouded with the dust of the 
contentions of men, where he himself had striven and erred. 
Stair was heart and soul a politician and lawyer. The adminis- 
tration of justice — a noble and difficult work, though less noble 
and difficult than that of the philosopher, — ^was the chief business 
of his life. He so discharged it that what he did wiU endure, 
not indeed for all time, but until its purpose has been fulfilled. 
His Acts still live in the Statute-book, his decisions still some- 
times guide the Courts, his Institutions have settled the form of 
the greater part of Scotch law, and educated some of the best 
lawyers. In mental calibre there can be no question which of 
the two men was greater. Amongst the lofty intellects with 
which GU>d has endowed the race that inhabits this island. 
Bacon stands second to Shakespeare alone. Stair, even in his 
own sphere not without rivals, must, if we survey the splendid 
and varied ranks of British genius, yield to many far more 
illustrious names. 

In one respect he was more fortunate. Bacon left behind 
him no one to transmit his name, and was a conspicuous example 
of his own saying, that ''the noblest works and foundations 
have proceeded from childless men."^ Stair is a proof that this 
apophthegm does not always hold true. He was the ancestor 
of a long and memorable line. " The family of Dahymple," 
writes Sir Walter Scott, a good witness on such a point, " pro- 
duced within the space of two centuries as many men of talent, 

^ *< Which have Bought to express the images of their minds where those 
of their bodies have failed ; so the care of posterity is most ia those that 
have no posterity."— Essay, Of Parents and Children, 

Pitcaim, in the poem ahready quoted, thus refers to Stair's sons : — 

<* Sed quamvis mentis non essent numina testes 
Nee caneret laudes Phoebus uterque tuas 
Quatuor iUa fori proles tua f ulmina nostri 
Fulmina mox nostro plura datura foro 
nia tusa celebrent laudes animasque quatemas 
Qnas uni voluit Jnppiter esse tibi 
Munera namqne togsB feliciter omnia functus 
Qu«B nunc sunt nati quatuor, unus eras." 



HIS DESCENDANTS. 293 

civil and military, of literary, political, and professional emi- 
nence, as any house in Scotland." Three at least of his sons 
Stair lived to see in honourable positions^ but not above their 
merit. Notwithstanding his political unscrupulousness and the 
black deed of Glencoe, his opponents admitted the Master of 
Stair to have been one of the ablest lawyers and first statesmen 
of his age. His second son, Sir James Dalrymple of Borthwick, 
followed his father's profession, became one of the principal clerks 
of the Court of Session, and, in a country which has been fruitful 
in antiquaries, was one of the most accurate and thorough. His 
third son, Sir Hew Dalrymple of North Berwick, who succeeded 
his father as President of the Court of Session, was " reckoned 
one of the best lawyers in Scotland, with a clear understanding 
and great gravity of manner, an eloquent speaker, smooth and 
slow in his expression." Thomas Dalrymple, his fourth son, 
was eminent in another profession, and became Court Physician 
to Queen Anne. His youngest son. Sir David Dakymple of 
Hailes, followed the hereditary calling of the law with distinc- 
tion and success, holding the office of Lord Advocate under 
Queen Anne and George L More eminent perhaps than any of 
his sons were his grandson, the Field-Marshal Stair, and his 
great-grandson, Sir David Dalrymple Lord Hailes. The former 
was equally distinguished in two opposite departments, war and 
diplomacy ; the latter was not only a good judge, but also a 
critical historian of the first order, at a time when historical 
criticism was scarcely known. 

It would be easy to extend the list of the descendants of 
Stair, who have shown marked ability of different degrees. 
Even at the present day there are those in whose veins some 
of his blood flows, who have shown that they are aware their 
countiy may require service from the inheritors of a name it 
has ennobled. The believer in the hereditaiy transmission of 
talent wiU find in the Dalrymple family an illustration of his 
favourite theory. Nor is it disputable that in several of its 



294 LORD 8TAIB. 

members there is observable a striking>reflection of the intellect 
and character of Stair. His industry and acumen, his skill in 
the management of business and of men, his turn for politics, 
theology, and science, which prevented his mind from being 
limited by his profession, are visible in varied proportions in 
the Master of Stair, the Field-Marshal, Sir James Dalrymple of 
Borthwick, Sir John Dalrymple of Cranston, the historian Lord 
Hailes, and his brother Alexander Dalrymple the hydrographer. 
This family, like a nation, has preserved a marked character of its 
own, which makes it an interesting subject of study.^ Yet it is 
proper to remember that these are only a few of his descendants, 
and that others might be pointed out who owed their success 
(which must have meant the failure of others less favoured by 
fortune) t^ no desert of their own, but to the accident of birth. 
Even amongst those who were distinguished this cause power- 
fully contributed to their advancement Nor did any of them 
rise 80 high as their progenitor, whose life has been here I hope 
truly related For he may be justly called the founder, not 
only of the house of Stair, but also of the law of Scotland 

^ I have leamt with pleasure, while correcting these pages for the press, 
that Mr. Murray Graham of Marrayshall, Advocate, is likely to give the 
public an account of the first three Lords Stair. I trust he will include in 
his work notices of some other members of the Dalrymple family, and in 
particular of Lord Hailes^ 



INDEX. 



lTh€ Inda r^ert to ihe notes as wU as (A« text, and to the authors quoted as wdl as original master.] 



Abdication, question whether Jamee 
vu. abdicated or forfeited Scotch 
Grown, 215. 

Aberdeen, refuses to accept Covenant, 12. 

its trade greater than Glasgow in 

middle of seventeenth century, 9. 
Cromwell's soldiers taught Aber- 



deen people to make boots and stock- 
ings, and to plant cabbages, 57. 

Aberdeen, Earl of, Sir Geoige Gordon, 
President of Court of Session on 
deposition of Stair, 150. 

Abeziichill, Lord, Sir CoHn Campbell, 
Judge of Court of Session, 227, 238, 
254. 

Actions, Definition of term * * Action," 1 56. 

Stair's division of, into Declaratory, 

Petitory, and Possessory, 168. 

Acts of Parliament referred to : — 



1425, c. 54, 
1469, c. 37, 
1469, c. 39, 
1487, c. 115, 
1555, c. 29, 
1567, c. 3, 
1579, c. 75, 
1579, c. 93, 
1581, c. 119, 
1587, c. 64, 
1587, c. 81>91, 
1617, c. 16, 
1633, c. 14.19, 
1649, c. 47, 
1661, c. 2, 
1661, c. 3, 
1661, c. 4, 
1661, c. 5, 
1661, c. 9, 
1661, c. 11, 
1661, c. 15, 



43,45 
106 
104 

45 
104 
146 
162 
224 
162 
104 

99 
104 

31 

42,45 

73, 229 

73 

ib. 

ib. 

ib. 
229 

73 



Acts of Parliament referred to 
1661, c. 16, . 
1661, c. 31, . 

1661, c. 62, . 

1662, c. 1, 2, 

1662, c. 10, . 

1663, c. 3, 
1663, c. 9, . 
1663, c. 26, . 
1669, a 2, 
1672, c. 2, . 
1672, c. 6, . 
1672, c. 7, . 
1672, c. 8, . 
1672, c. 13, . 
1672, c. 16, . 
1672, c. 19, . 
1681, c 5, . 
1681, c. 10, . 
1681, c. 11, . 
1681, c. 17, . 
1681, c. 20, . 
1685, c. 22, . 
1689, c. 2, . 

1689, c. 13, . 

1690, c. 2, . 
1690, c. 5, . 
1690, c. 17, . 
1690, c. 20, . 
1690, c. 21, . 
1690, c. 26, . 
1690, c. 39, . 
1693, c. 17, . 
1693, c. 26, . 
1696, c. 4, 
7 Will. in. c 3, 
10 Anne, c. 12, 
10 Geo. I. c. 19, 
20 Geo. n. c. 43, 
60 Geo. lu. c. 112, 



74 
162 
106 
74 
75 
76 
96 
244 
ib. 
103 
ib. 
104 
105 
ib. 
94 
162 
147 
148 
ib. 
ib. 
149 
162 
215 
216 
241 
ib. 
242 
ib. 
ib. 
ib. 
«&. 
265 
267 
271 
99 
241 
59 
96 
ib. 



296 



INDEX. 



Acts of Parliament referred to : — 

6and7 WilLiv. c. 114, 99 

1 and 2 Vict. c. 110, . 105 

10 and 11 Vict. c. 48, . 108 

34 and 35 Vict. c. 81, . 271 

Acts of Sederunt of Court of SeBsion, 
their quasi-legislative character, 135. 

regulate taxes and police, 272. 

Acts of Sederunt referred to : — 

27th May 1532, ... 266 
12th Feb. 1619, ... 25 

6th Feb. 1675, ... 135 
26th July 1675, . . . t&. 

Ist Feb. 1676, . . . t&. 

4th July 1676, ... 16. 

4th Jan. 1677, ... 136 
6th Nov. 1677, ... 268 
24th Dec. 1679, . . . i6. 
22d July 1680, ... 137 
18th Jan. 1684, ... 25 

3l8t July 1690, ... 272 
7th Nov. 1690, ... 268 
11th Nov. 1690, . . . ». 
29th Nov. 1690, ... 269 
2d June 1691, . . . t&. 
24th Nov. 1691, ... 270 
24th Feb. 1692, ... 272 
29th Feb. 1692, ... 16. 
25th June 1692, . . . i&. 
4th July 1692, ... i5. 

23d Nov. 1692, . . . ». 

Adjudication of land for debt» legislation 
relative to, 106. 

Advocates, Scotch, examination prior to 
1750 in Civil and not in Scots law, 
more honourable, 25. 

position of, in seventeenth century, 

34. 

their long written pleadings, 61. 

their opposition to regulation of 

fees, 94. 

their fees fixed according to client's 



quality, by regulation of 1672, 98. 

— regulations as to their fees rescinded 
in 1681, 98. 

— Acts of Sederunt 



as to mode of 



admission 1691-2, 269 et seq. 
See Secession. 



Advocates' Library, Sir 0. Mackenzie's 

inaugural oration, 130. 
Advocate, Lord, office of, held along with 

judgeship, for last time, by Sir John 

Nisbet, 33. 
declined by Lord Fonntainhall, 125. 



Advocate, Lords, referred to : — 

Sir David Dalrymple, 293. 

Sir John Dahymple, 210, 218. 

Sir Alexander Gibson, 32. 

Sir Thomas Hope, 30. 

Sir George Lockhart, Advocate to the 
Protector, 122. 

Sir George Mackenzie, 125, 133, 211. 

Sir John Nisbet» 33. 

Sir James Stewart, 33, 190, 210, 261. 
iBques, Exchequer Accounts of Crown 

Vasmls, regulated by BeguLations of 

1672, 100. 
Agriculture, Scotch Judges promote, 71. 
Feu-farm tenure introduced in 

favour of agricultural tenant, 162. 
Air, Stair's theory of its elasticity, 204. 
Albany, Duke of, John, one of founders 

of Court of Session, 191. 
Alcahest, mysterious substance in theory 

of Van der Beckt» 204. 
Alexander i., Act as to sale of debtors* 

lands, 106. 
UL, Adam de Dalrymple assumed 

surname of Dalrymple in his reign, 3. 
Andrews, St., refuses to accept Covenant, 

12. 
Ann, Ministers', Act regulating, 1672, c. 

13, 105. 
Annandale, William Lord, one of the 

Club, 221. 
member of Glenooe Commission, 

261. 
Anstruther, Sir William, Lord, Judge of 

Court of Session, 232. 
Antiquaries, Legal, see Sir James Dal- 
rymple, Davidson, Hailes,Innes, Skene, 

Thomson. 
Apology, Stair's, referred to, 62, 68, 118, 

134, 227 et 8eq. 
Append from Court of Session to Scotch 

Parliament, 113. 
from Court of Session to House of 

Lords not an unmixed benefit, 120. 
by Lady CoUington to Parliament 



in 1689, 227. 

Stair's opinion i^gainst competency 



of, 166. 

Aragonese Cortes, Scotch Parliament 
more feudal than, 161. 

Arbitration, Stair reconunends Inter- 
national, 283. 

A reiina. Sir George Mackenzie's Romance, 
127. 



INDEX. 



297 



Argyle, Earl of, Archibald, hU trial in 

1661 referred to, 33. 

his execution, 69. 

Archibald, his Bon, tried for taking 

Test with qualification, 149. 
— — at Leyden with Stair, 189. 

his expedition to Scotland, 208. 

his servant Spence tortured, 209. 



Aristotle, his logic studied at Glasgow in 

seventeenth century, 19. 
contest in Holland between his 

philosophy and Cartesian, 188. 
Stair criticises his errors in natural 



science, 199. 

his division of justice, 281. 



Amiston, Lord, Sir James Dundas, Judge 
of Court of Session, deposed for re- 
fusing Declaration, 77. 

again judge in 1689, 232. 

Arminianism, John Cameron, Principal of 
Glasgow University, an Arminian, 
condemned by GlaBgow Assembly, 
12. 

•^— controversies between Arminians 
and Gomarists, 188. 

John Howe, Nonconformist with 

Arminian leanings, 273. 

— -— Stair's theology of Arminian oast, 
282. 

Arminius, Jacobus, Professor at Leyden, 
187. 

Articles, Lords, or Committee of the, 
innovation in mode of election intro- 
duced by James vi., 10. 

Stair nominated as one by Lauder- 
dale in 1672, 101. 

— abolished after Revolution by Wil- 
liam in., 240. 

Assembly, General, of Scotch Church: 
at Glasgow, 1638, 12. 

at St. Andrews, 1641, 20. 

at St. Andrews, 1642, 18. 

of 1649 : visitation of Glasgow Uni- 
versity, 37. 

of 1650, sends mission to Charles 



n. at the Hague, 37. 
— sends mission to 



Charles n. at 

Breda, dissolved by Cromwell, 47. 
called by William m. to settle de- 

taUs of Church government^ 1690, 

241. 
Assise, Criminal, or Jury, Regulations 

regarding it by Act of Regulations, in 

1672, 99. 



Astronomy, Stair's erroneous theory, 

205. 
Athole, Duke of, member of Glencoe 

Commission, 261. 
Atomists, the. Stair's criticism of, in 

PhysMogia, 203. 
Austin, John, Bariister-at-Law, Analysis 

of Rights, 156. 
Avarice of advocates, some palliation but 

no excuse for, 33. 

Sir John Kisbet charged with, 33. 

Sir George Lockhart charged with, 

122. 
Ayrshire, its districts, Kyle, Carrick, and 

Cunningham, 2. 
the Dalryinples an Ayrshire family, 

3. 



the Montgomeriee of Stair an Ayr* 
shire family, 3. 

Stair member for Ayrshire after 



Revolution, 226. 

Bagkhutsbit, Ludolph, Dutch painter, 
189. 

Bacon, Francis, Viscount St. Albans, 
Lord Chancellor of England, his writ- 
ings with reference to the Union, 88. 

his influence on physical science, 

195. 

comparison with Stair, 291. 

Essay on ParenU and Children 



quoted, 292. 

Bajan, origin of word, 18. 

Baillie, Robert, Professor, and afterwards 
Principal, of University of Glasgow, 
LeUers of, referred to, 1, 3, 12, 13, 20, 
21, 36, 37, 39-42, 47, 58, 249. 

disputed settlement as Professor of 

Divinity in Glasgow, 20. 

discourse De HcBreiieonan AtUoca- 



tacrisi, 21. 

Commissioner from General As- 



sembly to Charles ii., at the Hague, in 
1649, 37. 

Balcarres, Lord, Narrative qfJffaira at 
devolution referred to, 214. 

Balfour, Sir James, of Pittendreich, Pre- 
sident of Court of Session, his char- 
acter, 26. 

a collector of Decisions, 192. 

Practicks referred to, 163. 

Sir James, of Kinnaird, Lyon-King- 

at- Arms, Amude referred to, 37, 46, 
52. 



298 



INDEX. 



Balmerino, Lord, Jamee Elphinstone, 
President of Court of Session, 229. 

— Lord, John Elphinstone, his trial 
and condemnation in 1635, 11. 
revises the Covenant in 1638, 12. 



Bankton, Lord, Andrew Macdowal, Insti- 
t/iUe of the Law of Scotland, 172. 

Baptisznal regeneration, doctrine of, con- 
demned by Stair, 278. 

Barclay, Sir George, treats with Earl of 
Breadalbane on behalf of James vn., 
254. 

Bastwick, Dr. John, pilloried for libelling 
Laud in 1637, U. 

Bates, Rev. William, Nonconformist, 
edits Stair's Vindication qf Divine Per- 
fectumsy 273. 

Bayle, Pierre, NouveUeM de la Ripublique 
dea LeUres, first published at Amster- 
dam in 1684, 188. 

review of Stair's Physiologia, 195, 

206. 

Beckt, Van der, his Theory of Alcahest^ 
204. 

Bedlay, Lord, James Boberton, Scotch 
judge, deposed for refusing the Decla- 
ration, 77. 

Beggars, regulation of, by A. S. 1692, 272. 

Bekker, Balthasar, his World Bewitched 
referred to, 250. 

Bell, George Joseph, Professor of Soots 
Law in University of Edinburgh, his 
Principles and Commentariee on ^ Law 
of Scotland referred to, 172. 

Bentham, Jeremy, 156. 

Berwick, Pacification of, 11th June 1639, 
13. 

Billeting, Act of, 75. 

Bills, Summary Diligence on foreign, 149; 
Stair treats law of bills only incident- 
ally, 158. 

Birel, Dutch ambassador, speech to 
Charles ii. as to reception of strangers 
in Holland, 53. 

Blackadder, Archbishop of GUufgow, per- 
secutes Lollards of Kyle, 4. 

Blackstone, Sir William, Judge of Court 
of Common Pleas, Commentaries on 
Laws of England referred to, 291. 

Blair, Rev. Robert, Commissioner from 
General Assembly to Charles IL at the 
Hague, 37. 

Blench holding, 162. 

Books, Scotch, printed in Holland, 9. 



Books, Dutch, sent to Glasgow Uniyer- 
sity, 23. 

earliest Scotch law-booksL See 

Balfour, Craig, Skene. 

Boewell, James, Advocate, Toiwr to the 
Hebrides referred to, 32, 57, 69. 

Bothwell Bridge, Duke of Monmouth de- 
feats Covenanters, 138. 

Bourges, University of. Sir G. Mackenzie 
studies at» 126. 

Boyd, Robert, of Trochrig, Principal of 
Glasgow University, flourishing state 
of University in his time, 8. 

CommenUiry on ike Ephewinsy pnb- 

Ushed by BaiUie, in 1652, 8. 

Boyd, Zachary, minister of the Barony 
parish of Glasgow, founds Library of 
Glasgow University, 23. 

Boyle, Honourable Robert, chemical dis- 
coveries of, referred to, 196. 

Boxes, Judges', origin of, 269. 

Breadalbane, Earl of, his scheme for con- 
ciliation of Highlaiids, 253. 

share in Glencoe guilt, 263. 

Breda, Commission from Scotch Parlia- 
ment and General Assembly to Charles 
n. there, 47. 

Bribery, Judges of Court of Session ac- 
cuscid of taking bribes, 58. 

Town of Edinburgh said to have 

bribed Duchess of Lauderdale as to 
retaining Summer Session, 109. 

Acts of Sederunt against solicita- 
tion of Judges, 136, 268. 

Bride of Lammermoor {see Janet Dal- 
rymple) referred to, 21, 81, ^ seq,, 225. 

Bridgman, Sir Orlando, Lord-Keeper, Mr. 
John Snell, his clerk, 24. 

EngUgh Commissioner with refer- 
ence to the union in 1670, 89. 

Brieves, Stair's description of, praised 
by Dallas, 165. 

Brodie, Alexander, Lord Brodie, Judge of 
Court of Session, commissioner from 
Scotch Parliament to Charles u. at the 
Hague, 37. 

his Diary referred to, 37, 51, 76. 

refuses to serve as Judge under 

Cromwell, 65. 

Broghill, Lord, afterwards Earl Of Orrery, 
President of Cromwell's Scotch Coun- 
cil, 57. 

Brown, T., Miscellanea AuUea referred to, 
75. 



INDEX. 



299 



Buchan, Major-Gkneral, treats on behalf 
of Jamee viL with Earl of Breadalbane, 
254. 

Buchanan, Greorge, description of Court 
of Session in 1587, 58. 

Buckle, Heniy Thomas, History of CfwU- 
hatUm, referred to, 248. 

Burgage tenure, 162. 

Burghs, Representatives of, oppose Act 
as to special adjudication, 107. 

" questions of Burghs of Leith, Lan- 
ark, Edinburgh, Aberdeen, as to law 
of deathbed, 271. 

— Burgh laws, Leges Burgorum referred 
to, ib, 

Burnet, Gilbert, Bishop of Salisbury, in 

Holland with Stair, 190. 
History qfhis OvmTimes referred to, 

11, 32, 52, 53, 65, 70, 80, 89, 101, 

116, 132, 133, 138, 146, 213, 243, 

288. 

— History of House qf Hamilton re- 
ferred to, 31. 

Letters referred to, 187. 



Burnet, Robert, of Crimond (father of 
Bishop Burnet), Scotch Judge, refuses 
to serve as Judge under Cromwell, 65. 

appointed Judge at Restoration, but 

refuses knighthood, 70. 

Burt, Samuel, Letters from the Highlands 
referred to, 248. 

Burton, Rev. Henry, Minister of Friday 
Street Church, pilloried for libelling 
Laud, 11. 

Burton, J. Hill, Advocate, Historiographer 
for Scotland, 138; Yns History of Scot- 
land referred to, 30, 37, 52, 54, 88, 
138, 204, 224, 233, 256, 267. 

Cabal, The, Lauderdale a member of the 

English Ministry so caUed, 132. 
Calamy, Rev. Edward, Life referred to, 

187; his i4/6</^oioe referred to, 212, 

273. 
Calderwood, Laird of, makes first strict 

entail in Scotland about 1607, 30. 
Callendar, Earl of, cause between him 

and Eaffl of Dunfermline appealed to 

Parliament, 113. 
Calumnies, Consolation against, essay by 

Sir G. Mackenzie, 127. 
Camden, William, Deser^f)tionqf Scotland, 

edited by Sir James Dairy mple, quoted, 

3. 



Cameron, John, Principal of Glasgow 
University, Professor at Sedan and 
Saumur, 7. 

— - afterwards at Montauban, died in 
1625, 8. 

his teaching Arminian and moderate. 



8. 

his followers in French Protestant 

Church called Cameronians or Amy- 
raldists, 8. 

Campbell, Captain, of Glenlyon, com- 
mands troops at Glencoe, 258. 

Campbell, Robert, Advocate and Barris- 
ter-at-law, his comparison of Begiam 
Majestatem and Glanville, 30. 

Campbell, Sir John, of Ardkinglas, Sheriff 
of Aigyle, takes Glenooe's oath, 254. 

Campbell, Thomas, Pleasures of Hope 
composed in Alison Square, Potterrow, 

67. 
Campvere, Scotch settlement in Holland, 

53. 
Canon Law, its influeuce in making 

Scotch law equitable, 55. 
Cappel, Louis, pupil of John Cameron, 

and editor of his works, 8. 
Cardross, Lord, 234, 244. 
Carlyle, Thomas, L^e and Letters of 

Cromwell referred to, 11, 56. 

estimate of Scotch Covenanters, 35. 

Carscreoch, Stair rebuilds mansion-house 

of, 71 ; residence there in retirement, 

178. 
Carrington, Sir Archibald Primrose, Lord 

Clerk Register, 236. 
Carstaires,' Rev. William, Principal of 

University of Edinburgh, exile in 

Holland at same time as Stair, 190. 
———nicknamed Cardinal by the Jaco- 
bites, 190. 
his deposition, on torture, against 

Stair, 208. 

Stair praises his prudence, 240. 

State Papers referred to, 245, 260. 

Cassilis, Earl of. Commissioner of Par- 
liament to Charles n. at the Hague, 

36. 

addresses the King, 37. 

Commissioner at Breda addresses 

the King, 48. 
■ rebukes Marquis of Newcastle for 

swearing, 49. 

goes to London with Stair at Re- 



storation, 70. 



300 



INDEX. 



Cathcart, Master of, recommended by 
Stoir to Melville, 234. 

marries daughter of Stair, 179. 

Celts, Scotch and Irish, lawlessness of, 
253. 

Chalmers, Sir John, of Gadsgirth, ances- 
tor of Stair, 3. 

Marion or Isobel, daughter of 

Sir John, one of Lollards of Kyle, 
marries William Dalrymple, 4. 

James, of Oadsgirth, signs bond of 

association in favour of Prince James 
in 1667, 5. 

James, cousin of Stair, who writes 

to him as to his becoming Regent at 
Glasgow, 14. 

John, joins Stair in action for erec- 



tion of parish of Stair, 110. 
Chambers, Robert, Domeatic AnnaU of 

Scotland referred to, 107, 141, 249. 
Chancellors of England. See Bacon, Sel- 

borne, Westbury. 
of Scotland. See Glencaim, Rothes, 

Spottiswoode. 
Charles i. crowned at Edinburgh 1633, 7. 

executed 30th January 1649, 35. 

II. proclaimed King at cross of 

Edinbuigh 5th February 1649, 36. 
account of negotiations with Scotch 



Commissioners at the Hague in 1649, 
38 

— at Breda in 1650, 47. 

— closed treaty between him and the 
Scotch, 50. 

lands at mouth of Spey, and swears 



to Covenant, 50. 

his Government in Scotland after 



Riestoration, 72-92 ; Stair's InatUuthns 
dedicated to, 152. 

Charter, Stair's description of clauses in, 
161. 

Chemists, the, Stair^s praise and criticism 
of, 203. 

Chiefs, Highland, their power, 253. 

Christie, Sir John, Commissioner to 
Charles n. at Hague, 36. 

W. D., Life ^ Shaftesbury referred 

to, 140. 

Church, Scotch, Laud*s innovations, 11. 

Cromwell's reforms, 58. 

restoration of Prelacy, 74. 

re-establishment of Presbyterian- 
ism, 241. See also Covenant and Re- 
formation. 



Citters, Butch ambassador, account of 
debate in Committee of Articles, 
123. 

Clarinda of Boms, Mis. M'Lehose, 

67. 

Clarendon, Earl of, Edward Hyde, char- 
acter of Hampden, 11. 

character of the Scotch Commis- 
sioners at the Hague, 38. 

his Spanish negotiation fails, 47. 

orders a search for King's signa- 
ture of Covenant at Restoration, 
69. 

Stale Papers referred to, 38, 39, 41, 

47, 49, 50. 

Classes, Act of, 50. 

Claverhonse, John Graham o^ Viscount 
Dundee, his conflict with Master of 
Stair in Galloway, 177. 

Club, the, in Scotch Parliament^ 1689, 
its origin, 221 ; votes, 223 ; and con- 
doct in Privy Council, 233. 

Cobbett, William, Staie Trials referred 
to, 132, 248. 

Cocoeius, John, Professor of Divinity at 
Leyden, lus principles of Biblical inter- 
pretation, 188. 

Cochrane, Sir John, of Ochiltree, in- 
dicted for treason along with Stair, 
207. 

his absence prevents Stair's trial, 

210. 

Cockbum, Adam, of Ormiston, Lord 
Justice -Clerk, member of Glencoe 
Commission, 261. 

Sir Alexander, Chief -Justice of Eng- 
land, description by him of English 
law, 46. 

Codification of Law, early attempts in 
Scotland, 42, et seq, 

Bell's Principles might be turned 

into Scotch code, 173. 

Coke, Sir £., Chief-Justice of Common 
Pleas, Stair's InstUtUions bears a 
favourable comparison with his InsU- 
tutes, 291. 

Colville, Alexander, Commendator of 
Culross, Judge of Court of Session, his 
Practicks, 28. 

Commerce, Scotch, in early part of 
seventeenth century, 9. 

advance in, influences growth of 

law, 172. 

Commonwealth in Scotland, 56-71. 



INDEX, 



301 



Competitive examination for Professor- 
ship, Stair elected Professor at Glas- 
gow by, 16. 

oath of Regents prior to, 15. 

instances at St. Andrews and Aber- 
deen, 15. 

Comprehension, Leighton*s attempt to 
effect it fails, 8a 

Convention of 1689, 215 e< seq* 

Conveyancing, its proper province not 
observed by its professors, 164. 

Dallas's opinion of Stair's treatment^ 

165. 

Cook, Bobert, his petition against the 
Peats, 267. 

Copyri^t, Stair's contract, 150 ; printed, 
173-176. 

Coronation of William and Mary as King 
and Queen of Scotland, 218. 

Corruption of Judges, Acts of Sederunt 
to prevent, 136, 268. 

Courts Baron, erected in Scotland by 
Cromwell, 60. 

Court of Exchequer, regulated in 1672, 
100. 

Court of Justiciary, Regulations as to it 
in 1672, 99. 

— commissions issued by it for trial 
of witches in 1661, 248. 

proceedings before it to be public 



by Act passed 1693, 266. 

Court of Session, instituted on model of 
Parliament of Paris by James v., 166. 

its corruption, 58. 

its reform by Cromwell, 58» 

abuses reformed by Act of Regula- 
tion in 1672, 95. 

charges against it in 1679, 139. 

Stair's defence of it successful, 140. 

Stair's hiBtory of its origin, 166. 

charges against it in 1690^ 264 ei 



aeq. 



refonn by Act of Parliament, 265. 

reform by Act of Sederunt, 266. 

Courts, Inferior, Commission of 1672 did 
not regulate their procedure, 100. 

Stur's opinion that their judges 

should be advocates, 166. 

their regulation remitted to Com- 



mission in 1695, 267> 

Covenant, the King's, a device of Charles 
i.'s Commisaioner, Marquis of Hamil- 
ton, 12. 

its ambiguous character, 12. 



Covenant : the Solemn League and Cove- 
nant of Scotland, England, and Ireland, 
39. 

— the National, prepared by Hender- 
son and Johnston of Warriston, and 
signed in Grey friars' Church, Ist 
March 1638, 12. 

War of the Covenanters against 



Charles L, 13. 

— many lawyers Covenanters, 31. 

— Charles n. swears to it, 50. 
declared an unlawful oath at the 



Restoration, 76. 

Craig, Sir Thomas, of Riocarton, Advo- 
cate, author of Jus Feudale, his char- 
acter, 27. 

his poems, 29. 

Crail, town of, does not accept the 
Covenant, 12. 

Crawford, Earl of, 230, 244. 

Crawford's Peerage referred to, 3, 5, 75, 
213. 

Crichton, Lord, afterwards Earl of Dum- 
fries, marries Sarah Dalrymple, daugh- 
ter of Stair, 252. 

Cromwell, Oliver, what if he had been a 
Scotchman, 35. 

letter to David Lesley in 1650 as 

to Charles n. as a Covenanted King, 51. 

his Government civilizes Scotland,57. 

■■ his reform of the Scotch Church, 58. 

— his reform of the Scotch Courts and 
Law, 59. 

Monk's letter to him as to Stair's 

appointment as Judge, 62, 63. 

his description of the Scotch, 72. 

Crook, one of (>omwell's English Judges, 
67. 

Crown (see Prerogative, Royal), succes- 
sion to Scotch, how settled at Revolu- 
tion, 216. 

Cujadus, Jacobus, Professor at Bourges, 
126. 

Cuninghame, Mr. Gabriel, his conference 
with Stair as to the Second Indulgence, 
102. 

Cunningham, Sir David of Milncraig, 
marries Isobel Dalrymple, daughter of 
Stair, 252. 

Mr. Alexander, exile in Holland 

at same time as Stair, 190. 

Cunninghame, Sir John, Advocate, one of 
the contrivers of the Act as to Special 
Adjudications, 107. 



302 



INDEX. 



CuDniaghame, Sir John, aasists Lock- 
hart in impeachment of Lauderdale, 
139. 

Customs — few particular Customs in 
Scotch Law, 161. 

Dallas, Ceoi^ of St. Martin's, Writer 

to the Signet^ Stair's contract with 

printer in his StOeB, 151, 195, 

200. 
his opinion of Stair's /nsCitictiofM, 

165. 
Dalrymple, Adam de, first assumed the 

surname of B. in reign of Alexander 

m., 3. 
— ^ Sir David, of Hailes, Lord Advocate 

under Queen Anne, 7. 

youngest son of Stair, 293. 

Sir David, Lord Hailes, proved 



Regiam Majestatem a copy of Glan- 
ville, 30 ; a critical historian, 293. 
Sir Hew, of North Berwick, Presi- 



dent of Court of Session, third son of 
Stair, 6, 293. 

— Sir James, of Borthwick, second 
son of Lord Stair, 68, 292. 

James, great-great-grandfather of 



Lord Stair, one of the Assured Lords, 
4 ; forfeited for his presence at Muir 
of Glasgow gathering, ib. 

James, great-grandfather of Lord 



Stair, signs bond for maintenance of 
preaching of the Gkwpel, 1562, 4 ; for- 
feited for joining Duke of Chatel- 
herault in attempt to seize Damley, 
5. 

— James, father of Lord Stair, Laird 
of Stair in Ayrshire, 2; dies when 
Stair five years old, 6 ; erroneous tradi- 
tion of his murder, t6. 

Sib Jamxb, 1st Viscount Staib, his 



ancestry, 2 et 9eq. 
— his birth, 1619, 5. 
-— at Mauchline Grammar School, 7. 
education at University of Glas- 



gow, ib, 

— in £dinbuigh, 1638, 10. 

serves in Glencaim's Regiment in 



Civil War, 13. 

— elected by examination Begent at 
University of Glasgow, 14. 

— lectures on Logic, 19. 
matries Maigaret Boss of Balneil, 



21. 



Dalrymple, Sir James, 1st Viscount 

Stair, resigns Begenoy, 22. 

admitted Advocate, 1648, 25. 

secretaiy to Commission sent to 

treat with Charles n. at the Hague, 37. 
commissioner for Bevision of the 



Law, 42. 

secretary to Commission sent to 



Breda, 47. 

— intercourse with Dutch jurists, 55. 

— refuses to take Cromwdl's Tender, 
6L 

— appointed Judge by Monk, 63. 

— intimacy with Monk, 68. 

— appointed Judge by Charles n., 70. 

— conunissioner for Plantation of 
Kirks and Teinds, 7L 

— refuses to take Declaration, 1662, 
77. 

restored to office by Charles il, 79. 
superstitious stories as to his f ainily , 



87. 



commissioner for Union of England 
and Scotland, 89. 

appointed President of Court of 



Session, 1670, 91. 

— Sir GeoE^ Mackenzie's character of 

him, 92. 

general confidence in him as Judge, 



93. 



commissioner for Begulation of 
Judicatories, 94. 

Member of Parliament for Wigton* 



shire, 101. 

one of the Committee of the Articles^ 



101. 



— petitions for grant of market at 
Glenluce, 109. 

raises action for erection of parish 



of Stair, 110. 

— his conduct on the great secession 

of the Advocates, 115. 

Edinbuigh Town-Council order his 



house-rent to be paid, 131. 

opposes severity of Privy Counci], 



132. 

— Acts of Sederunt during his Presi- 
dency, 135. 

— visits London to defend Court of 
Session, 139. 

his bold speech to Duke of York, 



141. 



Duke of York prevents him being 



made Chancellor, 143. 



INDEX, 



303 



Ist Viaoount 
as to Te8t» 



Dalrymple, Sir James, 

Stair, drafts BiU 

145. 
drafts Act as to ExecutioQ of Deeds, 

147. 



— publishes InMiuJtAons of Law of 
Scotland^ 161 ; summary and character 
of the Work, 151-176; his contract 
with the publisher, 173. 

lives in retirement in Galloway and 



Ayrshire, 177. 
— letters to Lord Queensberry, 178, 
179, 181, 183. 

takes refuge in Holland, 185 ; resi- 



dence at Leyden, 187. 

publishes Decisions of Court qf Ses' 



sUm, 190. 

— publishes Physiologia Nova Expert- 
mentalia^ 194 ; summary of this work, 
198 et seq. 

— prosecuted for treason, 207. 

— evidence against him extracted by 
torture, 209. 

pardoned, but still remains in Hol- 



land, 211. 

— accompanies William of Orange to 

England, 213. 

resides in London during Conven- 



tion, 214. 

letters from him to Lord Melville, 



218. 

— vote of the Qub directed against 

him, 213. 

attacked by anonymous pamphlet^ 



224. 

— publishes his Apology, 227. 

— President of Court of Session and 



Viscount, 230. 

-— defeats scheme of Club as to Vot- 



ing in Privy Council, 233. 

— his care of the Registers, 236. 

breach of his intimacy with Mel- 



ville, 238. 

— member of Committee for Settle- 
ment of Church, 240. 

— member of Commission for Visita- 
tion of Universities, 242. 

— supports proposal to embody Mili- 
tia, 244. 

— death of his wife, 247. 

— his share in massacre of Glencoe, 



254. 

— attacks upon him 
264. 



as President, 



Dalrymple, Sir James, 1st Visoount Stair, 

reforms by Act of Sederunt during 

his Presidency, 268. 
publication of Vindication of Divine 

Perfections, 273 ; summary of this 

work, 274, et seq. 

his death, 285. 

his personal appearance, 286. 

Macaulay's character of him tested. 



287. 



— his character as drawn by contem- 
poraries, 288 et seq. 

parallel between him and Bacon, 



291. 



his descendants, and character of 

Dalrjnnple family, 293. 
Dalrymple, Janet, Lady Dunbar of Bal- 

doon, story of Bride of Lammermoor, 81. 
John, of Stair, grandfather of Stair, 

5. 



Sir John, Master of Stair, afterwards 
first Earl Stair, conflict with Claver- 
house as to regality, 181 et seq. 
— Lord Advocate under James vn., 211. 

accompanies William of Orange on 



voyage to Torbay, 213. 

leader of King's party in Conven- 



tion 1689, 214. 

— sent to London to take William's 
oath, 217. 

— his conduct as to Glencoe, 255, et seq, 

— his character, 293. 
John, Field-Marshal, and second 



Earl Stair, son of Master of Stair, acci- 
dentally kills his elder brother, 87. 
his father procures a remission for 



this, 212. 

— accompanies Stair in his voyage 
with William of Orange to Torbay, 213. 
-— his Life referred to, 6, 15. 

— his character, 293. 

— Sir John, of Cranston, Memoirs qf 
Cfreat Britain and Ireland referred to, 
6, 13, 214, 253, 256, 293. 

— Thomas, physician to Queen Anne^ 
fourth son of Stair, 293. 

William, i., acquires estate of Stair 



by marriage with Agnes Kennedy in 
reign of James IL, 3. 

William, n., son of William i., 

marries Marion or Isobel Chalmers of 
Gadsgirth, one of the Lollards of Kyle, 3. 

Dalzell, General, recalled from the Rus- 
sian service by Charles ii., 80. 



304 



INDEX. 



Dalzell Bappresaes rising at the Pentlaod 
Hills in 1666, 80. 

introduces torture of thumbkins, 

209. 

Damley, Earl of, opposition to his mar- 
riage with Queen Mary, 4 ; Sir James 
Balfour an aooomplioe in his muitler, 

27. 
Bayidson, Mr. John, W.S., proved 

Begiam Mc^eBtatem a copy of Olan- 

viUe, 30. 
Deathbed, Law of, introduced by feudal 

custom, 271. 

regulated by Act of Sederunt, 1692, 



ib. 



now abolished, ib. 



Decisions of Court of Session, series of, 
reported by Judges, 191, 192 ; Stair^s 
view of their value, 192. 

Deeds, execution of. Stair's Act, 1681, 
c. 6, 147. 

Defoe's, Daniel, Tour in Scotkuid quoted, 
9. 

Denhohn, Sir William, of West Shiells, 
tried for treason and condemned in 
absence, 210. 

Descartes, Rend, contest in Holland be- 
tween his philosophy and that of Aris- 
totle, 188. 

-— Stair's criticism of Descartes' physi- 
cal theories, 203. 

his Principia referred to, 202, 



204. 
Dickson, David, Professor of Divinity at 

Glasgow, one of compilers of Directory 

of Public Worship, 17. 
Disputation, practice of, in Mediieval 

Universities, 19. 
Scotchmen, lawyers, and University 

men addicted to it, i&. 
DiumaU of Otcurreid* referred to, 4. 
Domestic Relations, Law of, classed by 

Stair amongst Obediential Obligations, 

167. 

Domtiii Auditore8, or Lords Auditors, a 
Committee of Scotch Parliament, extra- 
ordinary Lords in Court of Session, a 
relic of this Committee, 59. 

Donneau, Donellus Hugo, Professor at 
Bourges, 126. 

Doubts and Questions in Law, See Nisbet 

Douglas, Rev. Robert, alleged prophecy 
as to Stair, 225. 

Sir Joseph, carries letter from 



Scotch Parhament to Charles ii. at the 
Hague, 36. 

Douw, G«rard, Dutch painter, 189. 

Douza^ James, Curator of University of 
Leyden, 187. 

Diyden, John, Heroic StanzaSy Preface to, 
referred to, 57. 

Prologue spoken at Oxford refers 

to poverty of Scotch, 111. 

Drumclog, Claverhouse worsted by Cove- 
nanters at» 138. 

Drummond, General, Lord StrathaHan, 
introduces torture of thumbkins, 209. 

Adam, of M^gginch, member of 

Glencoe Commission, 201. 

Drummorchie, in parish of Barr, in Ayr- 
shire, birthplace of Stair, 5. 

Ducange, Gloesarium refeired to, 18. 

Dunbiu*, battle of, 3d September 1650, 
56. 

Dunbar, David, of Baldoon, husband of 
Janet Dalrymple, 82. 

elegy on hu death, by Andrew Sym- 

son, 84. 

^—^ Gkivin, Archbishop of Glasgow, one 
of founders of Court of Session, 
191. 

Dundee, storming of, by Monk, Ist Sep- 
tember 1651, 56. 

Viscount. See Claverhouae. 

Dunfermline, Earl of, cause between him 
and Earl of Callendar, appealed to Par- 
liament, 113. 

Edikbitbgh, comparison of, with Gla^w, 
in seventeenth century, 9. 

Stair comes there in 1638, 10. 

described in 1672 as most un- 
wholesome and unpleasant town in 
Scotland, 109. 

Council of, votes payment of Stair's 



house-rent, 131. 

cleaning of town regulated by, A. S., 



1692, 272. 

Education, Stair's education at Glasgow, 
7. 

Scotch zeal for the higher education. 



23. 



legal, 269. See Advocates. 



Eglinton, Earl of, patron of pariah of 
Kilwinning, refuses consent to Robert 
Baillie leaving, 20. 

Eliot, Gilbert, tried for treason and con- 
demned in absence, 210. 



INDEX. 



305 



English Judges in Scotland daring the 

Commonwealth, 69. 

their circnits, 69. 

their decisions, 61. 

their uprightness, 62. 

— — a new commission to English and 

Scotch Judges in 1661, did not take 

effect, 67. 
English Law. See Law. 
Entails, strict, Scotch law of, introduced 

at common law hy Sir Thomas Hope 

drca 1607, 30. 
sanctioned by Act 1686, c 22, 

drawn by Sir George Mackenzie, 

30. 
not now legal apart from statute, 

30. 

Stair's censure of it, 162. 



Episcopacy, restored by Charles u., 69. 

abolished in 1689, 221. 

Erskine, Sir Arthur, of Scotscraig, sent 
to meet Charles at his landing in Scot- 
land in 1660, 62. 

John, of Carnock, Professor of Law 

of Scotland in University of Edinburgh, 
character as a lawyer, 172; his InsU- 
tide of Law qf Scotland referred to, 
63. 

Evidence, Law of. Stair's treatment of, 
169. 

Exclusion Bill, Debate on, in English 
Parliament, 141. 

Executor Creditor, Act of Sederunt regu- 
lating diligence of, 137. 

Faoel, Gaspar, Griand Pensionar}' of Hol- 
land, 188 ; introduces Stair to William 
ni., 213. 

Falconer, David, one of Cromwell's judges, 
67. 

Favouritism by Scotch Judges of their 
own relations and friends, 228. 

Fees of Advocates and Writers fixed by 
the regulations of 1672, 98. 

Ferguson, James, the plotter, author of 
pamphlet in favour of votes of Parlia- 
ment, 1689, 224. 

Feudal Law. See Law. 

not settled in Scotland till institu- 
tion of Court of Session according to 
Stair, 27. 

tenure abolished by Cromwell, 59. 

completeness of Scotch feudalism, 



Flamsteed, John, his astronomical dis- 
coveries, 197* 

Flattery in dedications, 69. 

Fletcher, Andrew, of Saltoun, exile in 
Holland at same time as Stair, 190. 

one of the Countiy party in Parlia- 
ment 1689, 221. 

Forbes, William, Advocate, Prrface to 
Journal qfthe Sesjfion, referred to, 3-6, 
10, 14, 17, 66, 68, 71, 92-95, 141, 214, 
289. 

author of treatiBe on Teinds, 6. 

Forbes, Duncan, of Culloden, President 
of Court of Session, 132 ; a Reporter of 
Decisions, 192. 

Forster, Mr. John, Ida Life of Sir Henry 
Vane referred to, 90. 

Forsyth, David, Regent and Professor of 
Logic at University of Glasgow, 20. 

FouHs, Sir James, of Colinton, Judge of 
Court of Session, on the Committee of 
the Articles in 1672, 101. 

Fountainhall, Lord. See Lauder, Sir John. 

France, Stair visits, in 1664, 80. 

Court of Session, and its earliest pro- 
cedure in part derived from, 191. 

first country to abolish trial for 



161. 



witchcraft, 247. 

Franeker, Scotch students frequent its 
University, 64. 

Franklin, Benjamin, Autobiography re- 
ferred to, 19. 

Freeman, Mr. K A., Historical Essays 
referred to, 29. 

Gaius, his division of Law, 165. 

OalUenus Bedivious referred to, 266. 

Jacobite pamphlet on Glenooe, 260. 

Galloway, Claverhouse in, 177. 

Stair resides there, 178. 

noted for witches, 249. 

Gassendi, Peter, Stair's criticism on, in 
Physiologia, 198. 

Greddes, Jenny, her stool symbol of oppo- 
sition of Scotch to the Liturgy, 11. 

General's Entry, Stair's town residence 

67. 
Gentleman, influence of family on Scotch 

gentlemen of seventeenth century, 2. 
Scotch Judges country genUemen, 

71. 

Presbyterianism not a religion for a 

gentleman, in the opinion of Charles ii., 
74. 



U 



306 



INDEX. 



Geometry, one of the subjeotB taught by 
the junior Regent in Glasgow, 16. 

Stair's acquaintance with it shown 

in his Physiologia Nova ExperimetUaUa, 
16. 

Germany, witchcraft in, during seven- 
teenth century, 248. 

Gibson, Sir Alexander, Lord Dune, Lord 
Advocate under Charles n. ; his Ded- 
siona referred to, 32 ; published 1690, 
190. 

Gillespie, Rev. George, inscription on his 
tomb at Kirkcaldy defaced at Restora- 
tion, 69. 

Gilmour, Sir John, of OnugmiUar, Presi- 
dent of Court of Session, one of leaders 
of bar in 1648, 32. 

practises as Advocate during Com- 
monwealth, 66. 

appointed President at Restoration, 



70. 

— goes to London as to marriage arti- 
cles between Monmouth and Duchess of 
Buccleuch, 71. 

— Stair succeeds him as President in 



1671, 91. 

nominated President by King, 224. 



Glanville, Ranulf de. Justiciar of Henry u., 
his treatise De Ltgibus et CoMueiudmibus 
AngHcB copied in Scotch Regiam Majes- 
totem, 30. 

Glasgow, Assembly at, in 1638, its pro- 
ceedings, 12. 

Gathering at Muir of, in 1544, 

4. 



Stair at College of, as student, 1635- 

1637. 7. 

description of, in middle of seven- 



teenth century, 9. 

Glasgow University : Principals of, see 
Melville, Boyd, Cameron, Strang, Baillie; 
Professors of, ^ee Ma3me, Monro, Dick- 
son, Stair, Hutchison, Smith, Reid. 

its foundation in 1450, 8. 

Nova Erectio under James VL in 

1577, 16, 23. 

subjects of study, 16. 

overture anent College rents, 18. 

classes of students there, 18. 

visitation in 1642, 19. 

claim for exemption from Excise, 



21. 



Report of Commissioners, 19, 20. 
new buildings, 23. 



Glasgow, Snell's foundation of exhibiiion 

to Oxford, 24. 
Mwiimenia Univerntatis GUuguenM 

referred to, 7, 15, 16, 20, 22. 
Glencaim, William Earl o^ one of the 

leaders of the party of the Assured 

Lords, 4. 
at Glasgow Muir gathering in 1544, 

4. 



Alexander, the *' G<x>d Earl," mem- 
ber of the association of 1567 in sup- 
port of Prince James, 5. 

William, ninth Earl Stair, commands 



a troop in his regiment^ 13. 
— a doubtful supporter of the Cove- 
nant, 13. 
-— opposes Monk, 51. 

Chancellor of Scotland at Restora- 



tion, 70. 
Glencoe, Massacre of, 252 et aeq, 
Glendinning, William, Comnussioner to 

Charles n. at the Hague, 36. 
Glendoick, Sir Thomas Murray of. Lord 

Clerk-Register, 236. 
Glenluoe, grant of market at Kirk of, 

109. 
-— — > Claverhouse there, 181. 

the Devil of, 249. 

God, Stair's Vindication of the PerfeOions 

of, 273 ei aeq. 
Godwin, WUliam, History qf the Common^ 

wecUth referred to, 62. 
Golf, students at Glasgow prohibited from 

playing 16. 
-^~ Lady Stair, by Old Nick's help, puts 

the ball into the hole, 251. 
Gomarists, their disputes with Arminians, 

188. 
Goodall, Walter, librarian. Advocates' 

Library, Prefotce to BoJlfowr^a Praeticka 

referred to, 26. 
Goodzear, Henry, one of CromweH's 

English judges, 66. 
Gordon's History qf Scotch Affairs, 1637- 

1641, quoted, 13. 
Gordon, Duke of, held Castle of Edinburgh 

during sittings of Convention in 1689, 

222. 
Government, Stair's view of it as a 

balance between prerogative and liberty, 

68. 
Gravius, Jacobus, Professor at Utrecht, 

188 ; his account of Leyden, 187. 
Graham, John, of Claverhouse, Visoount 



INDEX. 



307 



Dundee, his conflict of jariBdiction with 
Master of Stair in Old Luce parish, 
177 tt aeq, 

Graham, John, of Olaverhoiise, his con- 
duct at Eevolution of 1688, 222. 

Gronovius, Laurentius, of Hamburgh, Pro- 
fessor at Leyden, amiotator of Grotius, 
187. 

Grotius, Hugo, the most eminent Dutch 
jurist, 54. 

Stair's references to his writings, 55. 

Guardianship, law of, 157. 

Gudelinus, Petrus, Professor at Louvain, 
Stair's references to his writings, 55. 

Guizot's Life €f Monk referred to, 67, 
68. 

Guthrie, Rey. James, minister at Stirling, 
hanged June 1661, 69. 

Habeas Corpus Act passed 25th May 
1679, 141. 

Haddington, Earl of, Thomas Hamilton, 
President of Court of Session, his 
Prticiiciea referred to, 28 ; resigns Presi- 
dency in 1626, 33, 229. 

Hague, the Commission to Charles n. at, 
36 ; Scotch congregation there, 54. 

Hailes, Lord. See Dalrymple, Sir David, 
Judge of Court of Session. 

Hale, Sir Matthew, 65; his charge on 
trial for witchcraft, 249. 

Hallam, Henry, on Charles n.'8 govern- 
ment in Scotland, 76. 

Halley, Edmund, his discoveries, 197. 

Hamilton, Marquess of, Commissioner of 
Charles i. at Glasgow Assembly, 12. 

1644, first lay Chancellor of Glasgow 

University, 22. 

Charles n. bound not to bring him 

to Scotland in 1650, 50. 

Duke of, William, Commissioner in 



Scotch Parliament, 1689, 221 ; refuses 
to sign as President of Council, 235, 
251. 

— Sir William, the philosopher, account 
of the patronage of professorships at 
Leyden, 187. 

Sir William of Whitelaw, Lord 



Justice-Clerk, his satire on Stair refer- 
red to, 83. 
— satire on himself, ib, 

member of Glencoe Commission, 



in the case of ship-money makes him 
famous, 11. 

Hairey, William, M.D. , his discovery of the 
circulation of the blood fortuitous, 199. 

Hatton, Lord, Charles Maitland, brother 
of Duke of Lauderdale, Extraordinary 
Lord of Session, supports abolition of 
Summer Session, 108. 

considered by Scotch, cause of corrup- 
tion of Lauderdale's Government, 133. 
his trial for perjury with reference 



to Mitchell, 132. 

his Peat, Sir John, 268. 



260. 
Hampden, John, judgment against him 



Heinsius, Daniel, at University of Leyden, 

186. 
Helmont, John Baptist van, revived 

theory of Thales, 204. 
Henderson, Bev. Alexander, Principal of 

University at Edinburgh, leader of 

Scotch Covenanters, 12; his tomb de- 
faced, 69. 
Henlie, John, one of Cromwell's English 

Judges, 67. 
Heritable Jurisdictions, their abolition, 

172. 
conflict between daverhouse and 

Master of Stair as to, 181. 
Hickes, Dr., letter to Pepys as to tragical 

story in Stair's family, 251. 
Highland Host, Stair opposes and Mac- 
kenzie supports its introduction into 

West country, 133. 
Highlands, condition of, after Revolution 

of 1688, 253. 
Hill, Colonel, <TOvemor of Fort-William, 

receives Glencoe's submission, 254. 
History of Law, Stair traces the, 143. 
Holland, Stair visits it in 1649 and 1650, 

37,46. 

British exiles in, 192. 

toleration there, 53. 

Stair retreats there in 1682, 184. 

Scotch exiles there, 188. 

States of, refuse to expel Stair, 207. 

industry there univeraal, 192. 

three Scotch regiments there, 222, 

232. 
Hollingshead, Raphael, Cfhrcnides, his 

assertion that Scotland was an English 

fief refuted by Craig, 29. 
Hooke, Robert, his statement of un- 

dulatory theory of light, 205. 
Hope, Archibald, Lord Rankeillor, Judge 

of Court of Session, 261. 



308 



INDEX. 



Hope, Sir James, one of Cromwell's Judges, 

67. 

Sir Thomas, Lord Advocate under 

Charles i., introduced irritant and reso- 
lutive clauses in entails, 30. 

his PracUcks, 30. 

advised Charles i. in measures for 



commutation of tithes, 31. 
a leading Covenanter, 31. 



Howe, Rev. John, Nonconformist, 273. 

Howell, historiographer of Charles, on 
Scotch witches, 248. 

Hume, Baron David, Scotch Judge, the 
last Judge who collected Decisions, 
192. 

his opinion as to causes of prosecu- 
tion for witchcraft, 248. 

his Commentaries on Crimincd Law 



of Scotland referred to, 99, 248, 250. 
Hume, David, of Qodscroft, History qf 

House qf Douglas referred to, 44. 
Hume, Sir Patrick, of Polwarth, exile in 

Holland at same time as Stair, 190. 
Hutcheson, Francis, Professor of Moral 

Philosophy at Glasgow, predecessor of 

Stair, 16. 
in lectures on Moral Philosophy 

uses Civil Law Phraseology, ib, 
Hutchinson's Essay m Witchcrqft, 248. 

Impartial Narrative, pamphlet in defence 

of Master of Stair, 21L 
Indulgence, Leighton*s attempts at Com- 
prehension, 81. 

Lauderdale's policy of, 132. 

Inglis, Right Honourable J., President of 

Court of Session, defence of Stair's 

conduct as to secession of Advocates, 

118. 
Innes, Professor Cosmo, Advocate, 136. 
A. Taylor, Advocate, his character 

of SirG. Mackenzie, 126. 
Institutions of the Law of Scotland, Stair's 

Treatise, 161-176. See Bell, Bankton, 

Erskine, Mackenzie. 
Institutional Treatises on Scotch Law, 

171 et seq. 
International Law. See Law. . 
Irving, Dr. David, Keeper of Advocates' 

Library, Edinburgh, Lives of Scottish 

Writers referred to, 7, 273. 

Jaffkat, Alexander, Provost of Aber- 



deen, Commissioner to Charles n. at 

the Hague, 36 ; his Diary referred to, 

37, 51. 
James i., commission for Revision of Law 

in 1425, 43. 
m., commission for Revision of Law 

in 1469, 43. 

IT., Lollards of Kyle tried before 



him and his Council, 4. 
— v., founder of Court of Session, 
68, 166. 

Yi. of Scotland and l of England, 



his saying, *' No King, no Bishop," 74 ; 
suggests name of Great Britain, 88. 
vn. of Scotland, and n. of England, 



visits Scotland as Duke of York, 141 ; 
his conciliatory policy, 142 ; his cruelty, 
143 ; declared by Convention of 1689 
to have forefaulted Scotch Crown, 213. 

Johnson, Dr. Samuel, criticism on Mac- 
kenzie's characters of the Scotch Advo- 
cates, 32. 

laughed to hear Cromwell's soldiers 

taught Aberdeen people to make shoes 
and stockings, 67. 

his defence of flattery in Dedica- 



tions, 69. 

Johnston, Arthur, M.D., description of 
the Court of Session in 1697, 68. 

Sir Archibald, of Warriston, one of 

the framers of the Covenant, 12 ; exe- 
cuted 1663, 34. 

Mai^garet, his daughter, one of the 



women in the Parliiunent Close Riot 
in 1672, 112. 

Secretary, son of Sir Archibald, 

Secretary of Scotland along with 
Master of Stair, plots to supplant 
Master of Stair, 260, 264. 

Judges, Scotch, hiferior to Advocates in 
middle of 16th century ; Stair's para- 
dox as to unjust Judges, 193. 

corruption of, 58. 

■ shameless defence of it, 62. 

favouritism of, 93. 

their Peats, 267. 

of the Court of Session referred to. 

See Aberdeen, Earl of, AberuchiU, 
Amiston, Balfour, Balmerino, Bank- 
ton, Bedlay, Brodie, Burnet, Colville, 
Crook, Dalrymple, Falconer, Forbes, 
Foulis, FountainhaU, Gibson, Gilmour, 
Hamilton, Hatton, Henlie, Hope, 
Inglis, Kaimes, Lookharty Maitland, 



INDEX. 



309 



Moncreiff, Moyailie, Newbyth, Scougal, 

Seton, Sinclair, Skene, SpottiBwoode, 

Stair, Stevenson, Wems, Wemyss, 

Winram. 
Judges, GromweH's English, 61. 
Jurisdiction, Heritable, conflict between 

Claverhouse and Master of Stair as to, 

181. 
Jurisprudence, Dutch, in middle of 17th 

century more elegant than German, 54. 
introduces modem Jus Gentium to 

Scotland, 65. 

Stair's InHitt^ons, an Essay in 



Comparative Jurisprudence, 153. 
Scotch, founded by Stair, 170. 



Justice, love of, should be ruling aim of 

lawyers, 3.3. 
corru^jtion in its administration in 

Scotland, 92. 

of God and Man contrasted by 



Stair, 281. 
Justice-Depute, this office abolished by 

Eegulations of 1672, 99. 
Justices of the Peace, introduced into 

Scotland by James vi., 61. 

Cromwell^s regulation as to, 60. 

Justiciary Court, its ms. Becords referred 

to, 208, 210. See Court of Justiciary. 
Justinian, his Codification of the Law 

imitated in Scotland, 45. 
division of his InetUtUes into four 

books followed by Stair, 154. 

EjkMBS, Lord, Henry Home, Judge of 
Court of Session, an agricultural im- 
prover, 71 ; his Eeeay on Execution re- 
ferred to, 105. 

Kant, Immanuel, his Analyeis of Bight 
referred to, 156. 

Kennedy of Knockdow, in Ayrshire, 
father of Janet Kennedy, the mother 
of Lord Stair, 5. 

James, Bishop of St. Andrews, 

grants dispensation for marriage of 
William Dalrymple and Agnes Ken- 
nedy, heiress of Stair, 3. 

Agnes, heiress of Stair Montgomery, 



3. 

— Janet, mother of Lord Stair, daugh- 
ter of Fergus Kennedy of Knockdow, 
5. 

— her ancestors adherents of the Be- 
formation, 5. 

— oare of Stair's education, 6. 



Kennedy, Janet, Stair attends her 
funeral, 77. 

Kent, Hon. William, Chancellor of the 
State of New York, Commentaries re- 
ferred to, 293. 

Killiecrankie, Mackay*s defeat by Dun- 
dee, 27th July 1689, 222. 

Kirkton, Bev. James, History of Cfivrch 
of Scotland from Restoratvon to 1678 
referred to, 52, 102, HI, 113. 

Knox, Johu, History of the R^ormoiion 
referred to, 4. 

Lady Stair's saying that Knox 

carried his point by Clavers, 252. 
tablet recently placed on his grave, 



283. 

Kyle, district of Kyle in Ayrshire divided 
into King's Kyle and Kyle Stewart, 2 ; 
Lollards of, 4. 

Laino, David, Librarian, Signet Libraiy, 
Edinburgh, Memoir of BaiUie referred 
to, 7, 18. 

Malcolm, Advocate, History of Scot- 
land referred to, 10, 12, 58, 214, 240, 
243, 244, 265. 

Lamont's Diary referred to, 15, 58, 
60. 

Land, descendants of Judges own much 
land in Scotland, 71. 

historical notice of provisions of 

law of Scotland as to taking land in 
execution for debt, 105, 106. 

— tardy reform of English law on this 
subject^ 105. 

whole land of Scotland under feudal 

teuure, 166. 

Acts as to sale of bankrupts' lands. 



242, 272. 
Latin, use of, in legal writings abolished 

by Cromwell in Scotland, 60; and 

in England, ib, 
Sir David Lyndsay advocated this 

in Dialog betwix Experience and ane 

Courteour, 60. 
— Scotch Commission as to treaty of 

Union in 1670 read in Latin, 89. 

Stair's Physiologia in Latin transla- 



tion, 195. 
Laud, Archbishop, attempts to impose 

Liturgy on Scotland, 11 ; libels on him 

by Prynne and others, t6. 
Lauder, Sir John, Lord Fountainhall, 

M8S. referred to, 145. 



310 



INDEX. 



Lauder, Sir John, Historical KoUees refer- 
red to, 120, 133, 137, 141, 207, 209. 

De^^sioM referred to, 45, 98, 108, 

122, 124, 145, 147, 149, 183, 186, 
207-211. 

life and character, 123. 

opinion as to Teat, 147. 

refoaes office of Lord Advocate, 125. 

opposes embodiment of militia, 245. 



Lauderdale, Earl, afterwards Duke of. 
Secretary of State for Scotland at 
Restoration, 74. 

excluded from indemnity by Act of 

Billeting, 75. 

his government of Scotland after 



fall of Middleton, 76. 
^~ citadel of Leith erected into a re- 
gality in his favour, 77. 
— recommends and supports Union in 
1670, 89. 

Stair appointed President by his 



influence, 92. 
— Ciommissiolier to Scotch Parliament 
in 1672, 101. 

hankers after policy of indulgence. 



133. 



— impeached before Charles n. for 
his government in Scotland, 139. 

— superseded by Duke of York, 142. 
Stair defends him in his Apology, 



228. 
Lauderdale, Duchess of, Countess of 

Dysart, daughter of William Murray, 

son of minister of Dysart, 100. 

her pride and avarice, 101. 

allegdd to have been Cromwell^s 

mistress, ib. 

satirical account of her, ib, 

the Presbyterians hated her, 133. 



Law, Criminal, 99. 

English, more insular than Scotch, 

55. 

Stair's knowledge of it, 66. 

as to aUowing counsel for prisoner 

to address jury, 99. 
as to taking land in execution for 

debt, 105. 
■ as to land register, 104. 

Feudal, parts of Stair's treatise 



which follow it, 160. 

Foreign, Stair's opinion of impor- 



tance of its study, 153. 
— philosophy of, its province to ascer- 
tain what are necessary rights, 158. 



Law, Roman, or Civil, Hntcheson's lec- 
tures on Moral Philosophy use phrase- 
ology and ideas borrowed from it, 16. 

Scotch lawyers examined in it ex- 
clusively tiU 1750, 24. 

^— division of civil law into persons, 
things, and actions, 155. 

part of Stair's treatise which follows 



civil law, 159. 
— ^— its authority in Scotland, ib. 
— commentators referred to. See Cu- 

jacius, Noodt, Matthseus, Schulting, 

Yinnius, Yoet. 
Law, Scotch, influence of canon law and 

European Jus Gkntiwn upon it, 55. 

as to prisoners' counsel, 99. 

as to registration of writs, 104. 

free from special customs, 161. 

history of reporting, 191. 

Institutional writers on. See Bell, 

Bankton, Erskine, Mackenzie^ Stair. 
Stair defines Law as Reason versant 

with the rights of man, 156. 
Law, Robert, son of Thomas Law, minis- 
ter of Lichinnan, notes by him of 

Stair's lectures on Logic, 16. 
Memorials referred to, 82, 113, 

189. 
Lawburrows, bonds of, imjMMed by Privy 

Council against advice ot Stair, 133. 
Lawyers, what should be their ruling 

aim, 33. 
Sir D. Lindsay's receipt for getting 

rid of them, 60. 

Lord Rothes' dislike to them, 95. 

money more likely to be wanting 



than lawyers to receive it, 232. 

Leibnitz, Godfrey, principle of Sufficient 
Reason, 275. 

Lei^ton, Bishop, his attempts at com- 
prehension, 80. 

Leith, its customs four times as large as 
Glasgow during Commonwealth, 9. 

erected into regality in favour of 

Lauderdale, 77. 

its citadel purchased by Magistrates 



of Edinburgh, ib, 
Lennox, Matthew Earl of, leader of 

Assured Lords, 4. 
Lemoyne, Stephen, Professor at Leyden, 

187. 
Leslie, David, General, afterwards Earl 

of Leven, commands Covenanters at 

Dunse Law, 13. 



INDEX. 



311 



Leslie, OomweU's letter to him as to 

Charles n. in 1650, 50. 
LeYsii, Earl of, second son of Lord Mel- 

▼iUe, exile in Holland at same time as 

Stair, 190. 
Zeven <md MelvUie Papers referred to, 

216-222, 226, 227, 230, 232, 233, 236- 

238, 240, 243. 
Leyden, Scotch books pnblished at, 9. 

Stair's residence there, 1682-6, 186. 

eminence of its University, 187 ; 

Scotch students frequent it, 53. 

■ Professors there. See Gronoyius, 
Lemoyne, Noodt, Schulting, Spanheim, 
Trigland, Voet 

Light, undulatory theory of, Stair's indis- 
tinct conception of, 205. 

Lipsius, Justus, at Univenity of Leyden, 
186. 

Livingstone, Rev. John, Minister of 
Ancmm, Commissioner from General 
Assembly to Charles il at Breda in 
1650, 47 ; his speech to the King, 48 ; 
his Life referred to, 48-51. 

"Mn., wife of Bev. John, one of the 

women in Parliament dose riot in 
1672, 112. 

■ Sir lliomas, Commander of William 
iel's forces in Highlands, 256, 262. 

Lochmaben, rentallers o^ 161. 

Locke, John, letters on toleration, written 

at Utrecht, 1686, 188. 
Lockhart, Sir William, Solicitor-General, 

assists Master of Stair in Parliament 

1689, 221. 

letters to Lord Melville, 225, 232. 

Sir George, of Camwath, President 

of Court of Session, his character, 120 

etaeq, 
conducts impeachment of Lauder- 
dale, 139. 
his opinion as to Argyle's trial, 

149. 

defends Master of Stair before Privy 



Council, 185. 

his murder, 218. 

Sir WiUiam, brother of Sir George, 

one of Cromwell's Judges, appointed 

by Lauderdale one of Lords of the 

Articles, 101. 
— - Sir William, of Lee, father of two 

former, 121. 
Logic, one of the subjects in which Stair 

examined when elected Professor, 15. 



Logic, Stair's lectures on, 16. 

uses of formal logic to lawyers, 

17. 

applied by Stair to theology in 

Vindication of Divine Perfections^ 284. 

Lollards of Kyle, Marion or Isobel Chal- 
mers, one of them an ancestress of 
Lord Stair, 3. 

Act of Scotch Parliament against 

them in 1424, 4. 

their trial «by James rv. at instance 



of Robert Blackadder, Archbishop of 
Glasgow, ib. 

account of their doctrines by John 



Knox, ib, 
Lothian, Earl of. Commissioner to Charles 

II. at the Hague in 1649, 36. 

at Breda in 1650, 47. 

Loudoun, James Earl of, revises the 

Covenant in 1638, 12. 
President of Commission for Revi- 



sion of Law in 1649, 42. 
— ^— letter by him to College of Glasgow 

as to Stair, 22. 
— -— Hugh Earl of, exile in Holland at 

same time as Stair, 189. 
Loudon HiU, Covenanters' engagement, 

138. 
Louis XIV., his Court visited by Stair in 

1661, 80. 

his edict against punishment of 



witchcraft, 247. 
Lyndsay, Sir David, Dialog betvfix Ex- 
perience and ane Oourteour, 60. 

Macaulay, Lord, History of England 
referred to, 123, 212, 217, 223, 232, 
243. 

error as to Janet Dalrymple, 81. 

account of scientific discoveries in 

seventeenth century, 196. 

account of Glencoe, 258. 

character of Stair tested, 286 et seq. 



Maodonald of Glencoe, 254 et seq. 
Mackay, General Hugh, of Scourie, his 

defeat at KiUiecrankie, 222. 
Mackenzie, Sir George, of Rosehaugh, 

Stair's junior as Advocate, 26. 
author of Entail Act, 1685, chap. 

xxii, 30. 
Characteres Advoeatorwn quoted. 



32, 120. 

— History referred to, 66, 74, 75, 89- 
92, 95, 100, 102, 103, 108, 109. 



312 



INDEX. 



Mackenzie, Sir George, OhafTViUiona on 
the StcUiUes referred to, 104, 105, 112- 
116. 

Def enaio Secreti Gonsilii coram rege, 

133. 

— Treatise an Registration, 104. 

— Vindieation qf King Charles IJJs 
Oavemment referred to, 99. 

— his character of Stair, 92. 

— his own character, 125. 

— his works, 126. 

— defends Lauderdale before Charles 
n., 139. 

letter to Lord Aberdeen, 10th Octo- 



ber 1682, 182. 

would die and beg for the Cavalier's 



cause, ib, 
> prosecutes Stair for treason, 208. 

— dismissed in 1687, but restored in 
1688, to office of Lord Advocate, 
210. 

— opinion on witchcraft, 248. 

Sir George, of Tarbet, Lord Tarbet. 

See Tarbet, Lord. 
M'Lennan, J. F., Advocate, his view of a 

stage of society antecedent to the family 

relation, 155. 
Maidment, James, Advocate, collection 

of Scotch Pasquils. See Pasquils. 
Maine, Sir H. Sumner, Member of Indian 

Council, and Corpus Professor of Juris- 
prudence at Oxford, his Ancient Law 

referred to, 155. 
Maitland, Sir Richard, of Lethington, 

Judge of Court of Session, his Pra>ciiekSf 

28, 191. 
Malebranche, Nicholas, Stair's criticiBm 

on, in Physvohgia, 203. 
Markets, grants of common, in 1672, 109. 
grant of weekly market at Kirk of 

Glenluce to Stair, 109. 
Marriage, regents at Glasgow required 

leave to marry in l7th century, 21. 

of Stair to Margaret Roes, 21. 

of his daughter Janet to Bimbar 

of Baldoon, 82. 
Mary Queen of Scots, her marriage to 

Damley opposed by Duke of Chatel- 

herault and others, 4. 
-— — confirms Acts of Parliament in 

1560, although not represented by 

Commissioner, 41. 
Commission for Revision of Law in 

1566, 43. 



Mauchline, Stair sent by his mother to 
Grammar School at, 1629, 7. 

Medina, Sir John, his portrait of Stiur, 
285. 

Medicine, Robert Mayne, first Professor 
of, at Glasgow, 14. 

visitors report in 1642 that IVo- 

f essorship of, is not necessary, 20. 

Melville, Andrew, Glasgow University in 
his time, 7. 

Hon. L, Prtface to Leven and Mel- 
ville Papers, 222. 

David, Lord Viscount, exile in 



Holland at same time as Stair, 189. 
prosecuted for treason along with 



Stair, 207. 

resigns office of Secretary for Soot- 



Lmd, 1691, 242. 

why superseded by Master of Stair, 



243. 



letters from Stair to him, 215, 218» 

219, 226, 227, 230, 232-3, 236, 237, 
238, 240. 

Menckenius, LUderus, his edition of Craig's 
Jus Feudaie, published 1715, 28. 

Mercy, more of, in Scripture than of all 
other Divine perfections, 282. 

Merivale, Charles B. D., History qf tiko 
Boman Empvrt referred to, 130. 

Middleburgh, Scotch settlement there, 
53. 

Middleton, Earl of, John, his government 
of Scotland, 1660-2, 73 ; dismissed from 
his offices, 75. 

Militia, Stair supports in Privy Council 
embodiment of, 244 ; Queen Mary dis- 
penses with it, 245. 

Milton, John, D^ensiopro Populo AngU- 
cano, written in answer to Sabnasius, 
causes his blindness, 54. 

Mitchell, James, his execution for at- 
tempt to murder Archbishop Sharpe, 
152. 

Mob, or Mobilie, introduction of this word 
into English language, 235. 

Moncreiff, Right Hon. James, Lord 
Justice-Clerk, his opinion as to aboli- 
tion of Outer House of Court of Ses- 
sion, 62. 

MondieflE^ Mr. David, Clerk of Privy 
CouncO, 255. 

Monk, General George, afterwards Duke 
of Albemarle, storms Dundee, and 
subjugates Scotland, 1651-4, 56. 



INDEX. 



313 



Monk, General George, Carlyle's charac- 
ter of, 56. 

hifl letters to Cromwell as to Stair's 

appointment as Judge, 63. 

Stair visited by, and consulted by 

him before his march to England, 67. 

Stair's advice to him to call Parlia- 
ment and set course of justice agoing, 
68. 

his motto, Victor nne aaftguiney 69. 



Monmouth, Duke of, his Marriage 

Articles with Duchess of Bucdeuch 

revised by Sir John Gilmour, 71. 
— defeats Covenanters at Bothwell 

Bridge, 138. 
Montgomery of Stair, family of, one of 

most ancient in Ayrshire, mentioned 

in Ragman Roll, 1296, 3. 
Sir James, of Skelmorlie, leader of 

the Club, 216,221,226. 
Montrose, Marquis of, James Graham, 

prosecuted by Sir Thomas Hope in 

1641, 33. 
Commissioners from Parliament to 

Charles n. at the Hague desire his 

removal from Court, 38. 

King's declaration to Commissioners 



agreed to after counsel with, 41. 
Charles writes to him that his 

negotiations with the Scots are not to 

impede his invasion of Scotland, 47. 
Stair a witness of his execution on 

21st May 1650, 52. 
his corpse reburied in St. Giles's at 

Restoration, 69. 
Mosheim's Church History referred to, 

188. 
Motion, Stair's theory of, 204. 
Galileo's and Newton's statement of 

First Law of Motion, t^. 
^oiley*B Dutch BepubUc referred to, 187 ; 

United Neiherlanda, 250. 
Moysilie, Edward, one of Cromwell's 

English Judges, 67. 
Munro, David, Regent and Professor of 

Philosophy at University of Glasgow, 

20. 
Murray, Sir Patrick, M.P. for Stranraer, 

how Lady Stair gained his vote, 

251. 
Sir Robert, excluded from indem- 
nity by Act of Billeting, 75. 
Murray, Sir Robert^ procures a milder 

administration in Scotland^ 80. 



Murray, Sir Robert, Lauderdale's letter 
to him quoted, 101. 

founder of Royal Society of Lon- 
don, 197. 

Burnet's character of him, 198. 

William, son of minister of Dysart, 



father of Duchess of Lauderdale, 100. 
Dr. Thomas, Literary Hietory of 



OaUoway referred to, 16, 21, 22, 86. 
Mylne, Robert^ his Notes to PaequUs re- 
ferred to, 251. 

Napixr, Mark, Advocate, Memorials of 
Dundee referred to, 178, 182, 184. 

Natural Science in 17th century, 195. 

Newton, Sir Isaac, his Prmcipia pub- 
lished, 1686, 197. 

his statement of First Law of 

Motion, 204. 

Newbyth, Lord, Sir John Baird, Judge of 
Court of Session, 230. 

Nicoll, John, Diary cf PuhUc Transac- 
tions^ chitfiy m Scotland, 1650-1667, 
referred to, 60, 67, 70. 

Nicolson, Sir Thomas, Advocate, one of 
leaders of Bar in 1648, his character, 
3L 

Nisbet, Alexander, Treatise on Heraldry 
referred to, 14. 

Sir John, of Dirleton, Lord Advo- 
cate under Charles ii., his character, 
33. 

his Doubts answered by Sir James 

Stewart, 33. 

declines office of President in 1671, 



9L 
Noodt, Gerardt, Professor of Civil Law 

at Leyden, 188. 
North, Roger, Mlxamen referred to, 

233. 
Notaries, their admission regulated, 

137. 
NouxfXLes de la R6publique des Lettres^ 

edited by Bayle, 195. 
■ criticism in it of Stair^s Physiotogia, 

206. 

Oath, Coronation, of William and Mary 

taken at Whitehall, 217. 
Obligations, division of, by Stair into 

Obediential and from Engagement, 

157. 
proper division of, in Municipal 

Law, 158. 



3U 



INDEX. 



Obaervatitms on the SUxtuUB, See Mac- 
kenzie, Sir C^rge. 

Officers of State^ Scotch Minirten so 
caUed, 218. 

Ogilvy, James, King's Solicitor, Member 
of Glencoe Commission, 261. 

Paokt, J. New Examen referred to, 260, 
263. 

Paisley, Booking Tenure of, similar to 
English Copyhold, 161. 

Palmer, Sir Roondell, Lord Chancellor 
Selbome, his opinion in favour of abo- 
lition of Outer House, 62. 

Parliament of England, none summoned 
between 1629 and 1641, 14. 

Long Parliament, 14. 

deb^ on Exclusion Bill, 141. 

of Paris, Court of Session founded 

on its model, 58. 

of Scotland completely under influ- 



ence of the Eing, 10. 

Committee of the Articles, 11. 

■ Judicial Committee or Domini 

Auditores, 59. 
its legislation in 17th century. 

See Acts of Parliament. 

fruitless Parliament, 1689, 221. 

important Parliament, 1690, 240. 

new Committees instead of the 

Articles, 240, 241. 
Parsons, the Jesuit, defence of the 

Spanish claim to throne of England 

answered by Craig, 29. 
Parties, troops sent against Conventicles, 

so called, 179. 
Pasquils on Stair quoted, 15, 66, 80, 84, 

87, 286. 

on Hamilton of Whytlaw, 84. 

on secession of Advocates, 113, 

117. 

on Duchess of Lauderdale, 101. 

against the Peats, 267. 

on Lady Stair, 251. 



Patronage, right of, in Scotch Church 
restored in 1649 to congregations, but 
taken away by Cromwdl, 58. 

regulation of Patronage at Bevolu- 

tion, 241. 

restored by 10 Anne, a 12, 241. 

Scotch Judges accuised of unfair 



patronage of relations, 267. 
Peats, favourites of Scotch Judges so 
called, 267. 



Peats, Robert Cook's petition against 
than, 268. 

Pepys, Samuel, Diary referred to, 75. 

LeUere <m WUchcr<rfi, 251. 

Perth, Articles of, condemned by Glas- 
gow Assembly, 12. 

PUloBophy, influence of training in philo- 
sophy on Stair, 24. 

natural philosophy in 17th century 

not divorced from mental, 200. 

its study useful to lawyers, 206. 

Physical Science, progress of, in 17ih 
century, 195. 

Physiologia Nova BaqferimentaUSf Staii^s 
work, referred to, 16 ; publication of, 
194; summazy of its contents, 201, 
eteeq, 

Pitcaim, Dr. Archibald, Latin verses on 
Stair, 290. 

PrcicHdie, or collections of Decisions of 
Court of Session, 190. See Balfour, 
ColviUe, Dune, Hope, Maitland, Sin- 
clair, Spottiswoode, Wemyss. 

Plrecept of Sasine, a separate writ prior 
to 1672, o. 7, 104. 

Presbyterianism not a religion for a 
gentleman, in opinion of Charles n., 
74. 

restored in 1690, 241. See Church. 

Prescription, Stair's Commentary on Law 
of, 164. 

Preston, James, Lord Fentonbams, Presi- 
dent of Court of Session, 229. 

Prerogative, Royal, Scotch nation in 
favour of its limitation, 36. 

Stair in favour of a balance between 

it and liberty, 68. 

Acts passed with reference to it at 



Restoration, 73. 

— Sir George Mackenzie, an Advocate 

of unlimited prerogative, 129. 

Master of Stair advocate of Royal 



Prerogative, with limitations, 

— nomination of President of Court of 



Session belongs to, 229. 
Presidents of Court of Session referred 

to— Sir James Balfour of Pittendreich, 

26, 192. 
William Baillie, Lord Ptovand, 

229. 



— Sir Hew Daltymple of North 
Berwick, 6, 192. 

Sir James Dalrymple, Lord Stair, 



91. 



INDEX. 



315 



Presidents of Court of Session referred 
to — James Elphinstone, Lord Balmer- 
ino, 229. 

Sir David Falconer, 229. 

Dnncan Forbes of Culloden, 192. 

Sir John Gilmour, 32, 70, 71, 91, 

229. 



— Sir Oeorge Gordon, Earl of Aber- 
deen, 229. 

— Thomas Hamilton, Earl of Had- 
dington, 28, 33, 192, 229. 

— John Inglis of Glencorse, 118. 

— Sir George Lockhart, 120, 229. 

— John Preston, Lord Fentonbarns, 



229. 



26. 



Bobert Reid, Bishop of Orkney, 



229. 



Alexander Seton, Lord Urquhart^ 



26. 



Henry Sinclair, Bishop of Boss, 

John Sinclair, Bishop of Brechin, 

26, 191. 
Sir James Skene, Lord Corriehill, 

229. 
Sir Bobert Spottiswoode, 34, 192, 

229. 
Privy Goandl of Scotland — Stair ap« 

pointed a member in 1671, 92. 
■ prominence of military members 

daring James n.'s reign, 132. 
severe measnres under Lauderdale 

and Duke of York, 133. 

Stair's opposition to these, 134 

' dispute as to all members signing 

votes in 1689, 232, 233. 

proceedings as to Glencoe's oath. 



255. 

MS. records referred to, 254, 255. 

Process, Forms of. Stair on, in 4th Book 
of InHUutUms, 167. 

Prynne, WiUiam, pilloried for libelling 
Laud, 11. 

Publicity of jadidal proceedings estab- 
lished in Scotland after Bevdution, 
266. 

QuKBNSBBRBY, Marquls of, letters from 
Stair to, quoted, 178, 179, 181, 
183. 

Quia Emptores, English Statute abol- 
ished Subinfeudation, 161. 

Quoniam AUachiamenioi edited by Sir 
John Skene, 29. 



Quoniam AtUuhiamenta^ referred to in 
Commissions for Bevision of Scotch 
Law in 1425 and 1566, 43. 

Bat, Bev. John, Itinerary referred to, 

9, 69 ; his classification of fishes, 196. 
Becords, Scotch, collections of, in Begister 

House, Edinburgh, 136. 
Beform Law, Cromwell's, 58. 
^-^ Commission of Charles n. in 1669, 

94. 
Acts of Sederunt affecting it under 

Stair's Presidency, 134. 

by Scotch Parliament in 1692, 265. 

^— Acts of Sederunt affecting it under 

Stair's second Presidency, 268. 
Beformation in Scotland, its precursors 

the Lollards of Kyle, 4. 
■ landed gentry, as well as preachers, 

caused it, 5. 
Stair's ancestors on both sides ad- 
herents of Beformation, 5. 
Begalities, conflict between Master of 

Stair and Claverhouse as to right of 

bailie of regality, 181. 
Segiam MajestaUmy edited by Sir John 

Skene, 29. 
copied from Glanville's Treatise, 

30. 



— referred to in Commissions for Bevi- 
sion of Scotch Law in 1425, 1469, 
1566, and 1649, 42 et aeq. 

Law of Deathbed referred to in. 



271. 
Begister, Lords Clerk-Begister referred 

to. See Sir George Mackenzie, Lord 

Tarbet, Sir Thomas Murray, Sir John 

Skene, Sir Archibald Primrose. 
Begisters, inventories of these, made 

under Stair's direction, 135. 
— — Lord Westbury's Act to introduce 

them in England, 104. 

Stair's care of, in 1690, 236. 

Begistration of deeds, Scotch system, 104. 
proposal to introduce^ in Elngland 

opposed, ib, 
■ Mackenzie's praise of, ib, 
of Buigh Sasines and Beversions 

by, 1681, c. 17, 14a 
Begulations, Act of, 1670, 94. 

of 1672, 95. 

Beid, Adam de Barskymming, leader of 

the Lollards, 4. 
Thomas, Professor of Moral Philo- 



316 



INDEX. 



Bophy at Glasgow, Stair a predeoeasor 
of Beid, 16. 

Reid, Thomas, successor of Adam Smith, 
i&. 

Robert, Bishop of Orkney, Presi- 
dent of Court of Session, one of the 
chief lawyers of 16th century, 26. 

Reporting, Lord Stair a reporter, 190. 

Scotch Law, . 191. 

modem system of, opinions, 193. 

Rescissory Act, 1661, o. 15, 73. 

Restoration, the, political measures at, 73. 

Revision of the Laws of Scotland, ac- 
count of Commissions with this object 
in 1425, 1469, 1566, 43. 

in 1674-1628, 44. 

in 1649, 45. 

in 1681, 45. 

their failure, 45. 

whether the nineteenth century 

will eflfeot this object, a problem for 
statesmen and lawyers, 46. 

Revolution of 1649, 35. 

of 1688, 212, et acq. 

Rights, Stair postulates rights as the 
object of law, 155. 

analysis by Gennan jurists of a 

right into person, thing, and action, 
166. 

Stair's division of, 156. 



Ripon, treaty of, concluded between 
Charles and Scotch, 1641, 14. 

Robert ni., ratification by him of grant 
by Malcolm Balrymple to Sir J. 
Kennedy, 3. 

Robertoun, James, one of Cromwell's 
Judges, 67. 

Robertson, Mr. R W., Scotland under her 
Early Kings referred to, 29. 

Joseph, LL.D., 136. 

Roman Law. See Law. 

Ronald, schoolmaster at Linlithgow, com- 
petes with Stair for place as Regent at 
Glasgow, 16. 

Ross, Margaret, of Balneil, wife of Stair. 
See Lady Stair. 

— — Lord, one of leaders of the Club, 
221, 239. 

Walter, W.a, Leehare$ an Hiatary 

and ProcUce qf Law qf SeoUand, re- 
ferred to, 164. 

Rothes, Earl, afterwards Duke of. Com- 
missioner to Scotch Parliament in 
1662, 75. 



Rothes, letter from him to Lauderdale as 

to advocates' fees, 95. 

his death in 1681, 143. 

Rotterdam, publication of Scotch books 

at, 9. 

Scotch congregation at, 54. 

Royal Society of London, Stair's Phydo- 

logia dedicated to, 197. 
its foundation by Sir Robert 

Murray, Justioe-Clerk, ib. 
Rutherfuid, Samuel, minister of Anwoth, 

his Lex Rex burnt by the hangman at 

the Restoration, 69. 
Rye-house Plot, Stair accused of com* 

plicity in, 209. 

Salmasius, Claudius, Professor at Ley- 
den, his Drfenaio JRegia pro Carolo 
Primo, answered by Milton, 54. 

visited by Stair, 55. 

Sanquhar, declaration of Cameron and 
Cargill, 139. 

Sasine, or Infeftment, Precept of Sasine 
made a separate writ by, 1672, c. 7, 

^_ instrument of sasine introduced from 
England by James L, 161. 

Scaliger, Julius Ciesar, Professor at Ley- 
den, 186. 

Scotland, its political position at com- 
mencement of 17th century, 10. 

under Cromwell, 56. 

schemes for union with England, 88. 

Schulting, Antony, Professor at Leyden, 
188. 

Science, Natural, use of study of, to 
lawyers, 206. 

Scotch, the, opposed to republic, 36. 

reputed Royalists, 56. 

women take prominent part in reli- 
gious struggles. 111. 

character of Scotch intellect, 172. 

Scotch Law. See Law. 

Scot, Sir John, of Sootstarvit, Staggering 
State of Scotch Statesfnen referred to, 
107. 

Scott, Sir Walter, commendation of 
Cromwell's government in Scotland, 
57. 

intended to represent Lady Stair by 

Lady Ashton in Bride o/Lammermoor^ 
but not Stair by Sir William Ashton, 
86. 

his Letten on Demonology and 



Witehcrcift referred to, 248. 



INDEX. 



317 



Scott, Sir Walter. See Bride of Lam- 
mermoor, Character of the Daliymple 
family, 292. 

Rev. H., Fasti Ecelena ScotkanoB 

referred to, 184. 

Scongal, John, of Humbie, one of Crom- 
well's Judges, 67- 

Secession of the Advocates when Tender 
imposed by Cromwell in 1664, 61. 

when tiieir fees regulated in 1670, 

94. 

the great secession as to Right of 

Appeal, 113. 

Secretaries of State for Scotland. See 
Middleton, Lauderdale, Stair, John- 
ston. 

Sederunt. See Acts of Sederunt. 

M8. Books of Sederunt referred 

to, 35, 77, 78, 80, 114, 116, 119, 
230. 

Session, Summer, of Court of Session, 
proposal to abolish it in 1672, 108. - 

abolished in 1681, and restored in 

1686, t&. See Court of Session. 

Seton, Alexander, Lord Urquhart, Presi- 
dent of Court of Session, 229. 

Shaipe, Mr. Eirkpatrick, his version of 
the story of the Bride of Lcmmermoor, 
82. 

Archbishop, opposes comprehension 

suggested by Leightou, 81. 

his opinion of Stair's just reforms 



in criminal proceedings, 134. 
— his murder at Magus Moor, 138. 
William, brother of Archbishop, 



letter to Lauderdale quoted, 78. 

Sinclair, John, Dean of Restalrig and 
Bishop of Brechin, collector of earli- 
est Pncticks, 26 ; his Journal qf De- 
cisions, 191. 

■ Henry, Bishop of Ross, President 
of Court of Session, one of chief 
Uwyers of 16th century, 26, 229. 

Sir Robert, Dean of Faculty of 

Advocates, 90, 107. 

Robert, Professor at Glasgow, 

Satan's Invisible World Discovered, 
249. 

Skene, Sir James, Lord Cuxriehill, Presi- 
dent of Court of Session, 229. 

Skene, Sir John, Lord Clerk-Register, 
edits Begiam Majestatem and Qwmiam 
AttaehiamenUi, 29 ; his work De Ver- 
borum Significatione, 30. 



Sloane, Sir Hans, his botanical re- 
searches, 196. 

Smith, Adam, 16. 

Sir John, Commissioner to Charles 

n. at Breda in 1650, 47. 

Smith's Iconographia Scotica referred to, 
33. 

Snell, John, of Uffeton, in Warwickshire, 
pupil of Stair in 1644, sends Walton's 
Bible to University of Glasgow, 1670, 
24. 

Solicitors before the Supreme Court, 98. 

Solicitation of Judges, Acts of Sederunt 
to prevent, 268. 

Spalding, John, History qf the Troubles 
referred to, 29. 

Spang, William, Scotch minister in Hol- 
land, Baillie's correspondent, 12. 

their correspondence full of orders 

for Dutch books, 23. 

Spanheim, Frederick, a pupil of Cameron, 
and editor of his works, 7. 

Spinoza, Benedict de, died at Amster- 
dam shortly before Stair's flight to 
Holland, 188. 

Spottiswoode, Archbishop, first Church- 
man after Reformation Chancellor of 
Scotland, 11. 

Sir Robert, President of Court of 

Session, executed in 1646, 34. 

his Practkks published in 1706, 

34. 

John, of that Ilk, Advocate, 



publishes Spottiswoode's Practieks, 
34. 

Stair, Viscount. See Dalrymple, Sir James. 

1. Earl of. See Dalrymple, Sir John, 

Master of Stair. 

II. Earl of, John, the Field-Mar- 
shal, 87, 212, 213, 293. 

Lady, Margaret Ross, her marriage. 



21 ; her witchcraft, 86 ; her death 

and character, 246, et seq, 
Stanley, A. P., Dean of Westminster, 

his Lectures on Scotch Cfhurch referred 

to, 126. 
Status, Law of, prior in time to Law of 

Contract, 155. 
Stephen, Mr. Fitzjames, his Criminal 

Law referred to, 99. 
Stewart, Dugald, criticism of Leibnitz's 

Principle of Sufficient Beasan, 275. 
Sfb James, Lord Advocate, answers 

Sir John Nisbet's Doubts, 33. 



318 



INDEX. 



Stewart, Sir James, Lord Advocate, exild 
in Holland at same time as Stair, 190. 

tried for treason and condemned in 

absence, 210. 

member of Glenooe Commission, 



261. 



Sir John of Coltness, exile in Hol- 
land at same time as Stair, 189. 

Stevenson, Lord, Sir Robert Sinclair, 
Jadge of Conrt of Session, 232. 

Strafford, Earl of, trial in 1641, 14. 

Strang, John, Principal of University of 
Gbu4>ow, Principal during the whole 
period of Stair's coDnexion with Uni- 
versity, 7. 

Sumptuary Act of 1674, 111. 

Stair recommends one in 1690 on 

account of the poverty of the Scotch, 
239. 

Superstition of 17th century considered 
Lord Balcomie's death on the Bench 
a national judgment, 63. 

Superstitions stories about Dalxymple 
family, 87 ; about Lady Stair, 250. 

Symson, Andrew, minister of Kirkinner, 
historian of Galloway, Elegy on Janet 
DcUrymple, 84; JElegy an Dunbar of 
Baldoon, 85. 

Swart (Schwartz\ Berthold, his invention 
of gunpowder, 200. 

Tacks, or Leases, made real rights by 
1449, c. 18, contrary to rule of Civil 
Law, 164. 

Tarbet, Lord, Sir George Mackenzie, 
Lord derk-RegiBter, deposed for re- 
fusing the Declaration, 77. 

his oath to be taken that he had 

not embezzled the Registers, 236. 

Taverns, political meetings held in them, 
Preston's Tavern in High Street, Edin- 
burgh, 222. 

— Ship Tavern in St. James Street, 
214. 

Teinds, or Tithes, Scotch law of, system 
of valuation, 31. 

Stair Commissioner for, 71, 164. 

patrons to have right to tiiose not 

heritably disponed, 242. 

Tenants, real right conferred on, 142. 
■ removing of, 242. 

Tender, the, or oath of allegiance to the 
Commonwealth, refused by the Scotch 
Advocates in 1654, 61. 



Tenure, explanation of five forms of Scotch 
land tenure, 102. 

Terce excluded by marriage contract, 
148. 

Test Act, debate on it in Scotch Parlia- 
ment, 144. 

Stair's draft for a Test Act not 

adopted, 145. 

its consequences, 149. 

no test except on Professors after 



1688, 241. 
Thales, his theory of water as the first 

principle revived by Van Helmont in 

17th century, 204. 
Thirlage, origin of servitude of, 163. 
Thomson, Thomas, Advocate, Prrface to 

Acta of ParUament of SeoUand referred 

to, 43. 
Thurlow, Staie Papers referred to, 63, 65. 
Toleration, effect of it in Holland de- 
scribed by Burnet, 53. 

William m.'s protest for, 217. 

English and Siootch exiles learnt it 

in HoUand, 8ee Holland. 

Locke's letters on, 188. 

Stair's toleration as to revealed re- 



ligion, but not as to natural, 280. 
limits of Lord Fountainhall's, 125. 



Torbay, Stair lands with William of 
Orange at, 263. 

Torricelli, his experiments as to suspen- 
sion of mercury in a tube, 199. 

Torture, Duke of York's pleasure in, 
143. 

— Dalzell and Drummond introduce 
new torture, 209. 

Canrtairs and Spenoe tortured. 



209. 



Stair^s advice to allow only where 

one witness a half probation, 219. 

Trade, rise of trade of Glasgow in 17th 
century, 9 ; its rapid increase after the 
Union, ib. 

Transubetantiation, Stair refutes error of, 
278. 

Treason, constructive : case of Lord Bai- 
merino, 11 ; of Earl of Argyle, 33; of 
his son, 149 ; of Lord Stair, 207. 

Tribonian, compiler of Justinian's law- 
books, 155. 

Trigland, Professor of Divinity at Leyden, 
187. 

Trust, law of, treated by Stair in species 
of mandate, 158. 



INDEX. 



319 



Tmat, law of, proof restricted by, 1696, 

c. 25, to writ or oath, 159. 
Tomer, Sir James, his severe fines in the 

West under Lauderdale's Government, 

80. 
tried and dismissed from the King's 

service, 80. 

Mefmoira referred to, 75. 



Tweeddale, Earl of, suggests scheme for 

Union in 1670, 88. 
Marquis o^ Commissioner of Scotch 

Parliament 1695, 260. 
Tytler, P. P., Advocate^ Hislory qf Scot- 

Icmd referred to, 4. 
Lift of Craig referred to, 27, 29. 

Udal or Allodial tenure, a partial excep- 
tion to complete feudalism in Scotland, 
160. 

Unity of God, Stair's historical argument 
in support of, 279. 

Union of England and Scotland, Crom- 
well's measures with this object, 61. 

negotiations in London in 1670 as 

to, 88 et aeq. 

Universities, Scotch. See Glasgow, St. 
Andrews, Aberdeen, Edinburgh. 

foreign. See Sedan, Saumur, Mont- 

auban, Leyden, Utrecht, Franeker, 
Bourges. 

influence of University training on 



Stair, 24. 

— test imposed 



on Professors after 
Revolution of 1688, 241. 

Commission for their visitation, 



1690, of which Stair a member, 242. 
Utrecht, Scotch students frequent its 

University, 54. 
Professors at University, circo 1682. 

See Grasvius, Van der Meuden, De 

Vries, Witsius. 
Utrecht, controversies between Plrofessors 

there and at Leyden, 188. 

Stair visits Utrecht, 207. 

IgwgHaTi exiles there, 212. 

Valuatton of teinds, system introdaced 

by Sir T. Hope, 31. 

Stair a Ccmmissioner for, 164. 

Van der Beckt, Dutch chemist, 204. 
der Meuden, Professor of Civil Law 

at (Jtrecht, 188. 

Ostade, Adrian, Dutch painter, 189. 

Vandervelde,William, Dutch painter, 189. 



Vane, Sir Henry, his speech with reference 

to the Union ref errad to, 90. 
VmdiccUion of Divme Perfections written 

by Stair, 273 et seq. See Stair. 
Vinnius, Arnold, Professor of Law at 

Leyden, author of Comimentary on the 

InttUuteSy 54. 
Yoet, Gisbert, theologian. Professor of 

Divinity at Utrecht, father of Paul 

Voet iiie lawyer, 53; his followers 

called Voetians, 188. 
Paul, lawyer, Professor at Utrecht, 

author of work De StahUis et eorum 

Concursu, 53. 

John, lawyer, son of Paul, and 



author of Commentaries on the Pandects, 

54 ; Professor of Civil Law at Leyden, 

188. 
Voltaire, Si&eU de Louis XIV. referred to, 

247. 
Vries, De, Professor at Utrecht, 188. 

Walkbs, Dr., of Camwath, Lectures on 
Scotch Theology in 16th and 17th cen- 
turies referred to, 8. 

Wallace, Lord Craigie, Scotch Judge, 
114, 117. 

Wallis, John, his discoveries in Statics, 

197. 
Wedderbum, Sir Peter, Advocate, one of 

the contrivers of the Act as to Special 

Adjudications, 107. 
Weld, C. R., History qf Royal Society 

referred to, 196. 
Wems, Sir John, one of Cromwell's 

Judges, 67. 
Wemyss, Henry, Bishop of Galloway, 

Judge of Court of Session, his Practicks, 

2a 

Whewell, Rev. W., Master of Trinity 
College, Cambridge, History of the 
Inductive Sciences referred to, 196, 197, 
199, 202, 204. 

Westbury, Lord Chancellor, Sir K Bethel], 
his Act for Registration of Land in 
England a faQuro, 104. 

Wier, John, physician of Grave, de- 
nounces lariab for witchcraft in 16th 
century, 250. 

Will, the Free Will of God, 277. 

William of Orange declares that interest 
of People and Crown cannot be oppo- 
site, 186. 

his voyage to England, 1688, 213. 



320 



INDEX. 



William of Orange, Stair negotiatee be- 
tween him and Scotch, 214. 

Act of Snccession to Scotch Crown, 

216. 



— takes oath before Scotch Gommis- 
sioners, 217< 

— letter to Scotch Convention, 217. 

— his Ministry in Scotland, 218. 
appoints Stair President of Court of 



Session, 218. 
— prudent concessions in Parliament, 
1690, 240. 

instructions to Sir T. Livingstone 



as to Glenooe, 257. 

how far he was guilty of Glenooe 



massacre, 263. 
William the Silent founds University of 

Leyden, 187. 
Williams, Joshua^ bamster-at-law, TreaUae 

on Real Property referred to, 105. 
Wine, price of, regulated by A. S., 1692, 

272. 
Winram, George, Lord Libberton, Scotch 

Judge, Commissioner to Charles n. at 

the Hague in 1649, 36. 

sent to Jersey in 1650, 46. 

dies from wounds received at Dun- 
bar, 52. 
Witchcraft, Lady Stair accused of it, 247. 
belief in it in seventeenth century, 

248 et eeq. 
Witnesses to Deeds, Scotch law as to, 

under Stair's Act, 1681, ch. v., 147. 



Witsius, Professor of Theology at Utrecht, 
18& 

Wodrow, Bev. Robert, minister of East- 
wood. History of the Stifferinge referred 
to, 33, 134, 139, 144-147, 177, 178, 
186, 198 ; AnaUcta referred to, 123, 
288 ; L^e of David Dickeon referred 
to, 17 ; M8. Diary referred to, 63. 

Women, incident of the women in the 
Parliament Close, 111 ; their influence 
in Scotch religious struggles, %b. 

Wood, James, Professor of Divinity at 
St. Andrews, Commissioner from Gen- 
eral Assembly to Charles n. at the 
Hague, 37 ; and at Breda, 48. 

Woodward, his NaluroX HiHory <^ the 
Earth, 196. 

Worcester, battle of, 3d September 1651, 
56. 

Writers to the Signet, their fees regulated 
in 1672, 98. 

their original business conveyanc- 
ing, 98. 

their proposal to abolish adjudica- 



ture and restore apprisings, 108. 

York, James Duke of, afterwards James 

u., in Scotland, 1679, 141. 
Stair^s speech to him at Holyrood, 

141. 

again in Scotland, 1680, 142. 

attempts conciliation, t6. 

his cruelty, according to Burnet, 143. 



ERRATA. 



Page 4, line 8, /or great-grandfather, read great-great-grandfather. 

Page 33, line IS, for Sir John Stewart, read Sir James Stewart 

Page 84, line 1,/or decide, read deride. 

Page 105, line 1*7, for conformation, read confirmation. 

Page 113, line 10, for part, read point. 

Page 128, line 17, for superiors read informers. 



EDINBURGH : T. AND A. CONSTABLB, 
I'MINTBRS TO THE QUBEN, AND TO THB UNIVBlUilTY. 



tt 



16 3*} 3